Opinion
No. 11–P–1882.
2012-12-5
COMMONWEALTH v. Roger LAU.
By the Court (CYPHER, GREEN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from his conviction of two counts of rape of a child, the defendant claims error in (i) the removal of a prospective juror by the trial judge, (ii) the use of out-of-court statements to impeach a defense witness, and (iii) certain statements made by the prosecutor during closing argument. After hearing argument, and based on our review of the record and the briefs submitted by the parties, we discern no cause to disturb the judgments. We address the defendant's various claims in turn.
1. Juror removal. The trial judge did not abuse her considerable discretion, see Commonwealth v. Vann Long, 419 Mass. 798, 803 (1995), in removing a juror who reported that her live-in boyfriend knew the defendant through his work at a liquor store. At a minimum, the discovery of the connection suggested the possibility that the juror had discussed the case with her boyfriend outside of the proceedings. The other considerations recited by the judge at the time of her ruling also are sound: the possibility that the juror might learn things about the defendant from her boyfriend, and that the boyfriend's relationship with the defendant (whether positive or negative) could have some influence on the juror's assessment of the defendant's guilt. The judge's comments reveal close and careful consideration of the question, and her ultimate determination that it was better in the circumstances to avoid the risk did not amount to an abuse of her discretion. Though the defendant cites several cases affirming a judge's refusal to dismiss a juror based on a connection to the defendant, he has cited none treating as an abuse of discretion the dismissal of a juror in such circumstances. There was no error. 2. Hearsay. The defendant claims error in the admission of testimony, elicited on cross-examination of a defense witness, that the victim told her during an October, 2009, telephone call that the defendant and his codefendant had “crossed the line” with “some of the players.” In response, the Commonwealth argues that the statement was admissible to impeach the witness. The Commonwealth is correct.
We reject the defendant's suggestion that the judge's comment that “[i]t's an automatic disqualification” signaled a misapprehension of her discretionary authority, and a mistaken belief that she was compelled to dismiss the juror. We note that the defendant's objection at the time asserted no such claim, and we harbor little doubt that the judge would have corrected her misstatement had the defendant cited it as a ground of objection.
The defendant did not object to the question or the witness's answer. The defendant objected to a later question which incorporated her answer to the first, but the witness responded “no” to the question to which the objection was addressed. We accordingly review for a substantial risk of a miscarriage of justice.
During direct examination of the witness, defense counsel elicited testimony asserting that certain statements attributed to her in a police report prepared by Detective Sullivan were inaccurate. During redirect examination of the witness, defense counsel elicited from the witness testimony to the effect that the victim made no accusations in October, 2009, regarding the defendant or his codefendant, and that the first time the witness heard about the victim's allegations against them was in December, 2009. Thereafter, during the prosecutor's recross-examination, the prosecutor elicited testimony from the witness that the victim told her during the October telephone call that the defendants had “crossed the line” with “some of the players,” and that “she was thinking about going to the police.” The testimony elicited by the prosecutor on recross-examination was permissible to impeach the testimony of the witness challenging the accuracy of her initial statement to Detective Sullivan, as well as to impeach her testimony that the victim was talking only about a different coach (and not the defendant and his codefendant) during the October, 2009, telephone conversation. There was no error and, accordingly, no substantial risk of a miscarriage of justice.
Specifically, as illuminated during cross-examination, the statements she denied were those stating that the victim had made accusations against the defendants during a telephone conversation in October, 2009, when (according to the testimony) the victim had discussed only a different, previous coach during that conversation.
The testimony is as follows:
“ Q. And so there was nothing at that point in October of 2009 that had anything to do with Roger Lau or Tommy Heinz, correct?
“ A. No, right.
“ Q. The first time you heard about her allegations about Roger Lau and Tommy Heinz were [ sic ] in December of 2009, correct?
“ A. Yes.”
3. Closing argument. We likewise discern no cause to disturb the judgments based on the prosecutor's closing argument. As the trial judge observed, though the prosecutor's reference to the girls on the U14 soccer team the defendant coached as “prepubescent” was not based in the evidence, it was neither so inflammatory nor so central to the thrust of the closing argument as to cause undue prejudice to the defendant. The remaining passages cited by the defendant require little response. The prosecutor's reference to the statutory purpose to “protect[ ] a thirteen-year-old child just as it does a ten-year-old child and a seven-year-old child” was fair response to the emphasis placed by defense counsel on the fact that [w]e're not talking about a three or a four or a five or a six-year-old, we're talking about [a] thirteen, fourteen, fifteen-year-old girl with a relationship for a year and a half in the same small town....” Finally, though L.P. did not testify that she “wandered around the house for about 20 minutes because [the victim] and [the defendant] were in the bedroom, closed door having sex,” we conclude that, as summarized at pages thirty-six to thirty-seven of the Commonwealth's brief, there was ample evidence, much of it either based in or corroborated by L.P.'s testimony, to support the assertion that such an encounter had occurred at a time when the victim and L.P. were at the defendant's house.
Defense counsel made no objection at trial to the prosecutor's response.
We use the initials employed by the parties in their briefs to refer to the witness.
Judgments affirmed.