Opinion
No. 11–P–849.
2013-02-13
COMMONWEALTH v. Michael D. MORALES.
The defendant objected, and asserts that the nurse's answer implied that she believed a rape occurred, and invited the jury to give more weight to the police officer's testimony and the crime lab report. and
By the Court (CYPHER, KATZMANN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Michael D. Morales, appeals from his conviction by a Superior Court jury of two counts of rape. Subsequently he was found guilty of being an habitual offender in a bench trial. The defendant complains that evidence exceeding the proper scope of first complaint was admitted; unredacted forms from the sexual abuse nurse examiner (SANE) examination were admitted; there were errors in the prosecutor's closing argument; and defense counsel was ineffective in failing to object to these alleged improprieties. We affirm.
Background. The jury could have found the following facts. After a few pleasant meetings and telephone conversations, the defendant asked the victim out on a date. Driving separately, they met at a restaurant on October 6, 2008. After some conversation and kissing while seated at the bar, the defendant said, “I want you to know this isn't about sex.” The defendant invited the victim to watch a Red Sox game at his home with his roommate and her friends. On arrival there she discovered no one else was present. She decided to stay, and the two engaged in kissing for a time, until the victim attempted to stop its progression and reminded the defendant of his earlier statement. The defendant became more aggressive. The victim pushed him away and told him to stop. She fell to the floor and the defendant, on top of her, held her down, and penetrated her vaginally with a finger and his penis. The defendant took her to the shower and washed her. The victim tried not to show that she was frightened, telling the defendant she was feeling ill and wanted to leave. The victim went to Brockton Hospital to seek medication to avoid pregnancy and prevent disease. She was examined by a SANE nurse. The police were notified. The defense was that there had been consensual sex, and that the victim, upset upon discovering that the defendant had a girlfriend, interpreted the incident as a “one night stand” and claimed rape.
Discussion. 1. During the testimony of the SANE nurse, to whom the victim made her first complaint, and preceded by the judge's proper limiting instruction, the prosecutor sought to introduce “Form 3” of the sexual assault evidence collection kit. There was no objection. The defendant asserts that the hearsay narrative of the incident recorded on Form 3 improperly enhanced the victim's credibility and corroborated her account of the incident.
There is no merit in this assertion. The form was properly admitted as an integral part of the victim's first complaint. The form is a “patient's report of incident.” The nurse testified that as the victim told her about the incident, the nurse simultaneously recorded the narrative, and followed the form's instruction to the examiner to use the patient's own words and not include any opinion or conjecture of the examiner. A fair reading of the narrative recorded by the nurse indicates that she adhered closely to the instruction on the form.
Such oral statements recorded simultaneously in a SANE interview are an integral part of the disclosure by the victim and do not constitute a separate complaint. Cf. Commonwealth v. Revells, 78 Mass.App.Ct. 492, 496 (2010). For these reasons and the reasons given in greater detail in the Commonwealth's brief at pages 14–21, there was no substantial risk of a miscarriage of justice.
Next, the defendant asserts that testimony elicited by the prosecutor from the SANE nurse and a police officer, related to how the report to the police was made, essentially allowed the Commonwealth additional first complaint evidence “through the back door.” The defendant claims that “[e]very reiteration of the narrative, whether direct or inferred, tends to enhance the [victim's] credibility.”
There also is no merit in this argument. Evidence of how the police were contacted was independently admissible. Cf. Commonwealth v. McCoy, 456 Mass. 838, 845 (2010). Essentially, this evidence was admissible to rebut the defense theory that the sexual encounter was consensual, and that the victim was upset when she learned the defendant had a girlfriend and that her relationship with the defendant did not turn out as she expected. Compare Commonwealth v. Starkweather, 79 Mass.App.Ct. 791, 802 (2011) (circumstances and timing of police involvement may be admissible and relevant as a response to countervailing defense theory). For these reasons and the analysis given in the Commonwealth's brief at pages 21–26, we conclude there was no substantial risk of a miscarriage of justice.
2. The defendant asserts it was error to admit without redaction the SANE forms as labeled in the sexual assault evidence collection kit, containing terms “assailant,” and “assault,” “which assume the veracity of any allegation made.” He also complains that portions of the forms pertaining to subsequent criminal investigation should have been redacted. Defense counsel filed a motion in limine seeking redaction, which was allowed. However, counsel did not object at trial as each form was offered individually, apparently unredacted. Accordingly the motion was waived. During the trial, witnesses and counsel referred to the forms by title without objection. In closing argument, defense counsel urged the jury to review the forms to support the theory of the defense. Because these were standard forms, and their titles or labels were not prepared specifically for the defendant, we think there was little, if any, prejudice to the defendant. Any prejudice was limited by the defendant's use of the forms to develop any inconsistencies between the victim's recorded account of the incident and her trial testimony. There was no substantial risk of a miscarriage of justice.
3. The defendant complains that the prosecutor improperly invited the SANE nurse to opine on the defendant's guilt by asking whether the nurse's training and experience would enable her to know if someone's physical injuries would lead her to believe that person was raped. The reply was:
“As a SANE nurse, I can't determine whether or not a sexual assault happened. If you're asking me my opinion, I can give you my opinion of it, but it's not my job to determine whether it happened. That's for the police and the crime lab.”
The defendant objected, and asserts that the nurse's answer implied that she believed a rape occurred, and invited the jury to give more weight to the police officer's testimony and the crime lab report.
The nurse properly answered that it was not within her duties to determine whether a sexual assault occurred, and there is nothing in her reply to indicate that she held an opinion. In any event, because the central issue in the trial was consent, physical evidence was of little relevance. To the extent that the nurse erroneously stated that the police and the crime lab determine whether a sexual assault occurred, that error was remedied by the judge's clear instructions to the jury that they are the sole determiners of fact. Also, the judge's standard instruction that only answers and not questions are evidence took from the jury any consideration of unanswered questions.
4. The defendant complains at length that in closing argument, the prosecutor made blatant and egregious attempts to elicit emotional responses and appeal to the jury's sympathy; referred to the defendant as “a living monster”; and asked the jury to imagine being in the victim's position.
a. The defendant asserts that the prosecutor asked the jury to imagine being in the shoes of the victim, and used extreme epithets. The defendant cites these comments of the prosecutor:
“Imagine that. You've just been raped, and your rapist marches you to the shower to wash you off,” and “[i]magine that, your rapist kisses you on the forehead and tells you to call when you get home to make sure you are all right.”
and
“[W]hat else did he say to her moments before he digitally and vaginally raped her and anally penetrated her? ‘You can make this easy on yourself.’ Imagine hearing that as his whole body weight is on top of her.... For all intents and purposes, this man who she thought was her Prince Charming, became a monster, and this monster raped her multiple times.”
These comments of the prosecutor were not a call for the jury to place themselves in the shoes of the victim but asked them to form a mental picture or image from which they could determine the nature of the defendant's conduct. Characterizing the defendant as a monster in these circumstances had a basis in the facts which the jury could understand as the defendant's change in demeanor from the man the victim felt comfortable with to a person who unexpectedly became aggressive and overpowering, causing her to become fearful. While epithets should not be used to characterize a defendant, we think here that the prosecutor's use of hyperbole to cast a negative light on the defendant was not unduly prejudicial. Compare Commonwealth v. Rosario, 430 Mass. 505, 515–516 (1999).
“Imagine” is defined as: “To form a mental picture or image of.” American Heritage Dictionary 901 (3d ed.1996).
“Monster” is defined as: “One who inspires horror or disgust .” American Heritage Dictionary 1170.
b. The defendant asserts that the prosecutor commented extensively on the prolonged procedures the victim underwent at the hospital, characterizing the examination and treatment as “nightmares.” The prosecutor told the jury:
“[The defendant] least expected ... [the victim] would march in here and tell a group of fourteen strangers about the worst night in her life, in great detail; about what parts of her body were violated and what pain she was in; and she told you in her teary voice, as she [trembled], just like she did the night at the hospital. Well, she spoke and told you what happened.”
The prosecutor described conduct which the jurors saw and could use to evaluate the victim's credibility. The prosecutor did not inject any personal opinion. The defendant concedes the prosecutor stopped short of asking the jury directly to convict the defendant to vindicate the victim. Contrast Commonwealth v. Sanchez, 405 Mass 369, 375 (1989) (end the victim's nightmares).
c. The defendant asserts the prosecutor argued facts not in evidence when she stated:
“[The] defense wants you to believe that maybe you could all just chalk this up as just a night of rough sex and woman scorned.... Maybe that's where the redness comes from.”
There was evidence of some swelling and redness in the victim's genital area observed by the SANE nurse. The defendant's expert opined that it could not be determined whether it had been caused by consensual intercourse or rape. The prosecutor's remark appears to be a fair characterization of the defense, although the term “rough sex” was not in evidence. This remark stood alone and appears to be insignificant. There was no substantial risk of a miscarriage of justice.
5. Finally, the defendant asserts that counsel was ineffective for failing to object to these and other alleged improprieties. We do not agree that counsel can be declared ineffective. “[I]f an omission of counsel does not present a substantial risk of a miscarriage of justice ..., there is no basis for an ineffective assistance of counsel claim under either the Federal or the State Constitution.” Commonwealth v. Curtis, 417 Mass. 619, 625 n. 4 (1994).
Judgments affirmed.