Opinion
18-P-346
12-24-2019
COMMONWEALTH v. Jeremy LIBBY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Jeremy Libby, was found guilty of four counts of forcible rape of a child in violation of G. L. c. 265, § 22A. This appeal centers on the admission of DNA testing results of a pair of underwear that showed the presence of the defendant's sperm cells. We affirm.
In his reply brief, the defendant retracted the argument in his principal brief regarding the sufficiency of the evidence. Counsel confirmed at oral argument that this argument was withdrawn.
1. Admission of the underwear and the DNA test results. The defendant argues that the Commonwealth failed to authenticate Exhibit 2 as the underwear belonging to the victim, that the evidence of the defendant's sperm cells being found on the underwear was irrelevant and improperly admitted, and that even if relevant, the DNA evidence was more prejudicial than probative. The trial judge's decisions to admit evidence as relevant or properly authenticated, and whether the evidence is unduly prejudicial, are matters within the judge's discretion and are reviewed for abuse of discretion. See Commonwealth v. Gray, 463 Mass. 731, 751-752 (2012) ; Commonwealth v. Bonds, 445 Mass. 821, 831 (2006) ; Commonwealth v. Meola, 95 Mass. App. Ct. 303, 307-308 (2019) ; Mass. G. Evid. §§ 401, 403, 901(a) (2019).
a. Authenticity. The judge's role in admitting the underwear was to make a preliminary determination, without weighing credibility, whether the jury could find by a preponderance of the evidence that the underwear belonged to the victim. See Meola, 95 Mass. App. Ct. at 307-308 & n.13 ; Mass. G. Evid. § 104(b) (2019). The victim's mother took the victim to the emergency room after the victim disclosed the sexual assault on June 27, 2012. The mother testified that the victim's belongings, including "[t]he outfit she was wearing" and "the underwear she was wearing" when she went to the emergency room were "bagged" and "tagged" and then taken by the Palmer police. The mother was told to take the victim to see Dr. Stephen Boos the next day. Although the mother testified that she did not personally transport the victim's belongings to Boos, the parties stipulated that "the underwear contained in the evidence collection kit numbered 001126, Item Number 1-1-07 ... was received by Dr. Stephen Boos at Baystate hospital from [the mother] on June 28, 2012." The jury could reasonably conclude that the item was what the Commonwealth claimed it to be -- the underwear that the victim was wearing on June 27 -- and the judge's preliminary determination to admit the underwear in evidence was not "palpable error." See id. at 309, quoting Commonwealth v. Leonard, 428 Mass. 782, 786 (1999).
Any claim concerning the chain of custody went to the weight and not the admissibility of the evidence. See Commonwealth v. Mack, 482 Mass. 311, 318-319 & n.9 (2019).
Nor did the judge err in responding to the jury's question whether, "according to law, [with respect to] the evidence obtained in the ER, may the rape kit be sealed by healthcare practitioners in the ER and not be able to be opened until the crime lab?" The judge firmly instructed the jury "that the evidence in this case is closed. You have all the evidence before you. You are to determine this case based on that evidence and based on all of my instructions on the law." Defense counsel had asked the judge to instruct the jury not to engage in speculation; the instruction the judge gave conveyed the same message in different words. In her closing argument, defense counsel suggested that the mother had planted the defendant's semen on the victim's underwear. The judge's response did not foreclose the jury from considering this theory -- ironically, any instruction not to engage in speculation might have done so. The judge's response was well within his broad discretion. See Commonwealth v. Monteagudo, 427 Mass. 484, 488 (1998).
b. Presence of sperm cells. The defendant argues that the evidence indicating that his sperm cells were present in the crotch area of the victim's underwear was not relevant because the Commonwealth did not present evidence as to how the defendant's sperm got there. The judge determined that the evidence was "strikingly probative" of the defendant's motive, intent, and relationship with the victim. When the evidence of the DNA match was introduced, and again in his final charge, the judge gave limiting instructions stating that the jurors could not consider that evidence "as a substitute for proof that the defendant committed the crimes charged," nor as proof of a "criminal personality or bad character," but solely on the issues of "motive and/or intent."
At defense counsel's request, the judge did not say that the jurors could consider the evidence as probative of "opportunity."
The jury could reasonably infer that the presence of the defendant's sperm in the crotch of the victim's underwear was strong evidence that the defendant's relationship with the victim involved his own sexual gratification. This evidence was relevant to prove that the defendant's digital penetration of the victim was intentional. Unlike Commonwealth v. McDonagh, 480 Mass. 131, 140 (2018), this evidence did not merely show a general propensity for sexual attraction toward children, but rather gave rise to a reasonable inference that the defendant had a specific sexualized interest in the victim herself, on the same day when two of the charged sexual assaults occurred. See Commonwealth v. Bradshaw, 86 Mass. App. Ct. 74, 78-79 (2014). The judge did not abuse his discretion in determining that the DNA evidence was relevant, and that, in combination with the limiting instruction, any undue prejudice did not outweigh its probative value. See McDonagh, 480 Mass. at 143-144.
The defendant elicited evidence that the victim had a kidney ailment that led to chronic urinary tract infections and vaginal itching, and that adults, including the defendant, helped the victim clean herself. Accordingly, the judge, with the defendant's assent, instructed the jury that the Commonwealth had to prove that the defendant's acts were intentional rather than accidental. As the defendant's intent was a live issue in this case, the defendant's reliance on Commonwealth v. Crayton, 470 Mass. 228, 250-252 (2014), is misplaced.
c. Prosecutor's opening statement and closing argument. Prosecutors are entitled to say in their opening statements what they in good faith expect the evidence to show, see Commonwealth v. Qualls, 440 Mass. 576, 586 (2003), and to make closing arguments based on the evidence introduced at trial and the reasonable inferences to be drawn from it, see Commonwealth v. Gerhartsreiter, 82 Mass. App. Ct. 500, 514 (2012). "Argument that properly focuses on the evidence, and that ‘falls into the category of enthusiastic rhetoric, strong advocacy, and excusable hyperbole, ... is not grounds for reversal’ " (quotation omitted). Id., quoting Commonwealth v. Silva, 455 Mass. 503, 515 (2009).
All of the prosecutor's challenged statements and arguments were grounded in the evidence. In discussing the DNA evidence in particular, the prosecutor exercised commendable restraint. He permissibly "suggest[ed]" to the jury "that it is an eminent reasonable inference that that semen ended up on those underpants because [the defendant] had a sexual attraction to [the victim]." He did not dwell on this evidence, but instead explained to the jurors that it did not directly prove any element of the crimes with which the defendant was charged, that it was relevant only to the defendant's motive and intent, and that the most important evidence was the victim's testimony.
2. Speedy trial. The defendant's trial was held in January 2017, approximately four and one-half years after his arraignment in August 2012. Much of this time was attributable to the defendant's motion to suppress, which the Commonwealth appealed and the Supreme Judicial Court (SJC) affirmed in part, reversed in part, and remanded. See Commonwealth v. Libby, 472 Mass. 37 (2015). On July 18, 2016, the defendant filed a motion to dismiss under Mass. R. Crim. P. 36, as amended, 422 Mass. 1503 (1996), and for violation of his constitutional speedy trial right. The motion judge determined that at least 1,129 of the 1,423 days from arraignment to the filing of the motion were excludable; that is, no more than 294 days of the 365 days on the speedy trial clock had elapsed. On appeal, the defendant contends that the motion judge erred in his rule 36 calculations. He further argues, for the first time on appeal, that the 182 days from the filing of the rule 36 motion to the trial should be included in the calculation.
In reviewing rulings on rule 36 motions, we defer to the motion judge's factual findings based on the judge's personal observations and memory of the proceedings, but make an independent determination of the correctness of the judge's application of the relevant legal principles to the facts. See Commonwealth v. Dirico, 480 Mass. 491, 496 (2018).
In a chart included in his brief, and by reference to his memorandum in support of the rule 36 motion, the defendant disagrees with the judge's decisions to exclude certain periods. Passing upon whether this qualifies as proper appellate argument, upon careful consideration of the record and the motion judge's comprehensive memorandum of decision, we discern no error. The judge properly excluded the entire time that the motion to suppress was pending. The motion was complex, and nothing in the record suggests that the defendant objected to the delay. See Commonwealth v. Bourdon, 71 Mass. App. Ct. 420, 428-429 (2008). The judge's findings that the defendant acquiesced to the delay after the issuance of the SJC's decision, and did not object to the delay from February 24 to March 17, 2016, are likewise supported by the record. See Dirico, 480 Mass. at 499 ; Bourdon, 71 Mass. App. Ct. at 428-429. The judge properly excluded the delay resulting from the medical leave of an essential witness. See Mass. R. Crim. P. 36 (b) (2) (B). Nor did the judge err in denying the constitutional speedy trial claim. The defendant was at liberty awaiting trial, and his defense was not prejudiced by the passage of time; if anything, the passage of time inured to his benefit, allowing him to challenge the victim's recollection and the Commonwealth's efforts to refresh it. See Commonwealth v. Wallace, 472 Mass. 56, 70-72 (2015).
See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1629 (2019) (argument section of brief shall contain "the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities and parts of the record on which the appellant relies"); Commonwealth v. Gray, 423 Mass. 293, 296-297 (1996) (claims of error unsupported by reasoned argument and citations do not rise to level of appellate advocacy).
The defendant's chart asserts, without citation or record support, that the witness in question never testified at trial; however, the judge found that the "re-testing of certain items for DNA material was necessary so that another chemist could testify as to the results," and that this continuance "was deemed to be in the interests of justice." We have no basis to disagree with the judge's determination.
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We treat as waived the defendant's claim that the 182 days following the filing of the rule 36 motion consumed the time remaining on the clock, as he never asserted this claim in the trial court. See Commonwealth v. Turner, 37 Mass. App. Ct. 385, 386 n.2 (1994). In any event, we discern no risk of a miscarriage of justice. The rule 36 motion stopped the clock, see Barry v. Commonwealth, 390 Mass. 285, 294 (1983), and the trial began sixty-five days after the motion was decided, still within the time available under rule 36.
Judgments affirmed.