Opinion
21-P-639
09-29-2022
COMMONWEALTH v. BRIAN HAYDE.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant appeals from his conviction, after a jury trial, of rape of a child aggravated by a ten-year age difference, G. L. c. 265, § 23A. In this direct appeal from his conviction, the defendant raises two claims of error, both relating to the prosecutor's closing argument. First, the defendant argues that the prosecutor misrepresented the nature of the defense's agreement with respect to the deoxyribonucleic (DNA) evidence. Second, the defendant argues that the judge abused his discretion in denying his motion for a mistrial. That motion was based on the prosecutor's impermissible invitation to the jury to credit the victim because of what she had to go through by having a medical examination, speaking to investigators, and testifying in court. Although we conclude that the prosecutor made errors in her closing argument, for the reasons set out below, we affirm.
The defendant was acquitted of a second charge of aggravated rape of a child, and of indecent assault and battery on a person over the age of fourteen, G. L. c. 265, § 13H.
1. Misstatement in closing regarding DNA "agreement."
The Commonwealth introduced evidence that DNA evidence obtained from the victim's breast, perianal area, and pajama bottoms, "matched" the defendant's DNA profile. In closing, defense counsel stated that "[w]e agree that those [DNA] samples, those DNA samples were [the defendant]'s." However, based on a strong challenge to the credibility of the sexual assault nurse examiner (SANE) nurse, the defense argued that the jury should find that the SANE nurse obtained a DNA sample from the defendant (who was in the same hospital as the victim at the same time), and planted the defendant's DNA on the victim's body in order to buttress the victim's account of the crime. Defense counsel also argued that the process of transference explained the presence of the defendant's sperm on the victim's pajama bottoms and perianal area, while also explaining its absence from her vagina. Thus, although the defendant agreed that the samples sent to the laboratory for testing contained his DNA, he challenged where those samples had been obtained.
The defendant's DNA profile "matched" both the breast and the perianal swab samples with an expected frequency of occurrence of approximately one in 6.925 sextillion unrelated individuals; the YSTR DNA profile obtained from the pajama pants "matched" with an expected frequency of occurrence of approximately one in 943.
To rebut the defendant's argument, the prosecutor stated during closing that it was uncontested that the defendant's DNA was on the victim's body. These statements misrepresented what the defendant had agreed to; in fact, the defendant hotly contested important facts. "Prosecutors must limit the scope of their arguments to facts in evidence and inferences that may be reasonably drawn from the evidence." Commonwealth v. Beaudry, 445 Mass. 577, 580 (2005), quoting Commonwealth v. Coren, 437 Mass. 723, 730 (2002). "A prosecutor may not use 'closing argument to argue or suggest facts not previously introduced in evidence.'" Beaudry, supra, quoting Commonwealth v. Storey, 378 Mass. 312, 324 (1979), cert. denied, 446 U.S. 955 (1980).
"Now, the DNA analyst went over the numbers with you. There's a one in 6.925 sextillion chance that that DNA belongs to someone other than the defendant. And frankly, the defendant's not contesting that his semen was on the vagina of a 15-year-old girl that day. He doesn't contest that. . . . The defendant lied to the police when he told the police there's no reason for his DNA to be on [the victim's] body. And he lied to the police, and we know that, because his DNA was on her body. That's uncontested."
The defendant timely objected to the prosecutor's closing, and the judge gave a targeted curative instruction. The defendant did not object to the judge's instruction. Thus, we review only to "determine whether any error created a substantial risk of a miscarriage of justice." Commonwealth v. Beaudry, 445 Mass. at 587. See Commonwealth v. Abrahams, 85 Mass.App.Ct. 150, 155 (2014) ("As the defendant did not take exception to the instructions, we review for a substantial risk of a miscarriage of justice").
"In the defendant's closing argument, there was a statement that the defendant agreed that the DNA found on [the victim] belonged to the defendant. That is all that the defendant agreed to. The defendant did not agree as to where the DNA was found. To the extent that the prosecutor may have said explicitly or implied that the defendant agreed as to where the DNA was found, that's incorrect. And so disregard any such argument."
The judge's curative instruction was direct, forceful, and targeted. It clearly informed the jury of the prosecutor's misstatement and told them to disregard it; we presume that the jury heeded the judge's instruction. See Commonwealth v. Berry, 466 Mass. 763, 770 (2014) ("We assume as a rule that the jury follow the instructions provided to them by the judge"). Furthermore, the jury acquitted the defendant of the indecent assault and battery charge (sucking on the victim's breast), and of the rape charge based on penile penetration of the victim's vagina, suggesting that they at least partially credited the defendant's arguments about what the DNA evidence showed and where it was located. See Commonwealth v. Kozec, 399 Mass. 514, 517 (1987) (jury's verdict of guilty on one charge and not guilty on another shows jury were able to sort out excessive and conflicting claims by counsel and follow judge's instructions); Commonwealth v. Anderson, 58 Mass.App.Ct. 117, 124 n.6, cert. denied, 540 U.S. 1009 (2003) (assuming, arguendo, that there was error in omitting requested jury instruction, jury's split verdict "provides some indicia that the [error] did not create a substantial risk of an unfair jury verdict").
It is true, as the defendant argues, that the judge inadvertently mischaracterized the defendant's closing when the judge stated that the defendant "agreed that the DNA found on [the victim] belonged to the defendant" (emphasis added). In fact, the defendant only agreed that the samples sent to the lab were his, but he did not agree that they had been "found on" the victim. Despite this slip, we are convinced that, taken as a whole, the judge's instruction clearly informed the jury that the defendant was not agreeing that his DNA had been found on the victim's body. We think it particularly unlikely that the jury would have misunderstood the judge's slip given that the defendant's attack on the credibility of the SANE nurse, and her testimony about where she found the DNA evidence, was a centerpiece of the defense throughout. See Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016).
2. Mistrial; closing.
"A trial judge retains broad discretion in deciding whether to declare a mistrial, and [the appellate] court should defer to that judge's determination of whether the prosecutor committed prejudicial error, how much any such error infected the trial, and whether it was possible to correct that error through instruction to the jury." Commonwealth v. Thomas, 429 Mass. 146, 157 (1999), citing Commonwealth v. Olivares, 30 Mass.App.Ct. 596, 601 (1991). "A trial judge is in the best position to determine whether a mistrial, an extreme measure available to a trial judge to address error, is necessary, or whether a less drastic measure, such as a curative instruction, is adequate." Commonwealth v. Amran, 471 Mass. 354, 360 (2015). "A mistrial 'ought to be [declared] with the greatest caution, under urgent circumstances, and for very plain and obvious causes.'" Commonwealth v. Riberio, 49 Mass.App.Ct. 7, 11 (2000), quoting Commonwealth v. Horrigan, 41 Mass.App.Ct. 337, 340 (1996). See United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). "We review the denial of a motion for a mistrial for abuse of discretion." Commonwealth v. Martinez, 476 Mass. 186, 197 (2017), citing Commonwealth v. Lao, 460 Mass. 12, 19 (2011). A judge's decision "constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Here, the defendant's motion for a mistrial was based on statements in the prosecutor's closing in which she argued that the victim should be credited because the victim had put herself through the hardships of undergoing a medical examination, talking to investigators, and coming to court to testify. We have often disapproved of the type of argument the prosecutor resorted to here, in which a prosecutor impermissibly suggests that a witness is more credible simply because the witness appeared in court to testify or underwent some other part of the legal process. See Dirgo, 474 Mass. at 1013-1014; Beaudry, 445 Mass. at 586. "A prosecutor may not . . . suggest to the jury that a victim's testimony is entitled to greater credibility merely by virtue of her willingness to come into court to testify." Commonwealth v. Helberg, 73 Mass.App.Ct. 175, 179 (2008). See Commonwealth v. Hollie, 47 Mass.App.Ct. 538, 540 (1999). Even so, such an improper statement by the prosecutor "does not necessarily require a mistrial." Riberio, 49 Mass.App.Ct. at 10.
"Now, clearly [the victim] was upset when she testified. She was crying at times. She was angry at other times. Can you blame her for that? Not only did [the victim] have to live through what the defendant did to her, but she had to undergo invasive and embarrassing physical examinations. She had to talk to detectives and interviewers about what the defendant did to her. She had to talk to complete strangers about what happened to her that day. She had to come here and tell all of you what happened to her that day."
Here, the judge sua sponte noted the problem in the prosecutor's closing, and he decided to give a specific instruction targeting the statement relating to the medical examination. The judge then proceeded immediately to give his full charge to the jury, including the usual instructions that arguments are not evidence, and that the jury alone were to determine the witnesses' credibility. The judge denied the defendant's motion for a mistrial. The judge did not abuse his discretion to rely on his specific and general instructions to cure the problem caused by the prosecutor's closing, rather than to take the drastic step of a mistrial.
"Second, as I recall, there was some argument that [the victim] should be believed because she went through the examination. My memory is that there was no such testimony by [the victim] that it was difficult for her to go through that, and therefore, there is no evidence on which such an argument could be based. So I'll instruct the jury to disregard the argument that [the victim] is believable because she went through the examination."
The judge's curative instruction adequately addressed the fact that the victim did not testify that the medical examinations she underwent were "invasive" or "embarrassing," and the judge could consider that the other statements -- that the victim was interviewed by detectives and talked to "complete strangers" about the assault -- were adequately supported by the evidence. Finally, any prejudice stemming from improper bolstering of the victim's credibility was considerably lessened in this case, because there was significant evidence corroborating the victim's testimony, and the prosecution did not depend solely or heavily on the victim's credibility. Cf. Dirgo, 474 Mass. at 1013.
Judgment affirmed.
Vuono, Wolohojian & Kinder, JJ.
The panelists are listed in order of seniority.