Opinion
14-P-1132
12-30-2015
COMMONWEALTH v. RICHARD OTIS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
After a jury trial, the defendant was convicted of three counts of indecent assault and battery on a person under fourteen and one count of open and gross lewdness. He was acquitted of aggravated rape. On appeal, he raises various claims, none of which have merit. We affirm.
1. Delayed disclosure. The defendant claims that the judge erred by not declaring a mistrial following the late disclosure of a video recording of the cell area of the police station that showed the defendant motioning to an officer and indicating his willingness to speak with him. We disagree. The untimely video disclosure did not prejudice the defendant here or prevent the defense from "prepar[ing] and present[ing] its case in such a manner as to create a reasonable doubt that would not otherwise have existed" because the video was neither exculpatory nor exceptionally inculpatory. Commonwealth v. Wilson, 381 Mass. 90, 114 (1980). At most, the video corroborates the officer's testimony that the defendant initiated conversation with the police from the cell door. Although the defendant argues that a timely disclosure would have altered his trial strategy, the crux of his argument remained unaffected by the delay. In both his opening and closing statements, the defendant argued that he falsely confessed because he thought doing so would allow the best chance for his immediate release, and not because police pressured him to leave his cell or partake in additional interviews. A video demonstrating his willingness to speak with the police does not negate or impact this line of argument. Furthermore, the defendant employed a multifaceted trial strategy not solely confined to a humane practice defense. In particular, he asserted that the police conducted an insufficient investigation and attempted to cast doubt on the victim's credibility by both highlighting inconsistencies in her testimony and suggesting her potential motivations to lie. Therefore, no substantial risk of a miscarriage of justice was created, and the judge did not abuse his discretion in foregoing an opportunity to sua sponte declare a mistrial.
In support of this claim, the defendant argues he was prejudiced in pursuing a humane practice defense because, pursuant to this strategy, trial counsel strategically decided to admit a full length interview which led to admission of evidence of the defendant's prior bad acts as well as prejudicial statements by the police that the jury might not have heard otherwise. The defendant points to no evidence in the record to support his suggestion that he would not have pursued this strategy if he had known of the video earlier. Indeed, the absence of any further objection after reviewing the video over the weekend, suggests that the brief continuance remedied the late disclosure and that defense counsel determined the video prejudiced neither the defendant himself nor his trial strategy. See Commonwealth v. Hamilton, 426 Mass. 67, 71 (1997) ("It is an indication that prejudice was negated when the defendant's trial counsel stated that she was ready for trial after the two-day continuance and did not seek any further delay").
2. Witness testimony. The defendant also claims that the judge improperly admitted police testimony bolstering the victim's and other witnesses's credibility. We disagree. Although "a witness cannot be asked to assess the credibility of his testimony or that of other witnesses," none of the challenged testimony here rises to the level of improper opinion testimony or comments on other witnesses' credibility. Commonwealth v. Triplett, 398 Mass. 561, 567 (1986), quoting from Commonwealth v. Dickinson, 394 Mass. 702, 706 (1985).
While the defendant claims that the officer's testimony prejudiced the defendant by characterizing him as one of "these people," which the defense argues unfairly portrays him as one of "these [guilty] people" or as a sexual predator, the context of the officer's testimony explained that "these people" merely referred to subjects of police interrogation. The Commonwealth never put any such characterization before the jury. The defendant's claim that the officer's testimony suggested that he was an expert in confessions is likewise unfounded. Such statements did not constitute improper opinion testimony and specifically responded to cross-examination regarding the officer's training and personal experience. The defendant further claims that the officer improperly vouched for the credibility of both the defendant's confession as well as the victim in general. These statements, however, did not improperly assess credibility. Instead, the defendant elicited the officer's responses in pursuit of a Bowden defense regarding lack of diligent police efforts in corroborating the accusations. As a result, defense counsel invited the officer's response he received. See Commonwealth v. Knight, 37 Mass. App. Ct. 92, 99-100 (1994).
Although the judge sustained the defendant's objection to the officer's statement that he would not consider it a "success to have an innocent man confess to something he didn't do," the defendant argues that the statement still impacted the jury. Because we presume that juries follow instructions to disregard testimony, we disagree. Commonwealth v. Isabelle, 444 Mass. 416, 420 (2005).
The defendant bases this claim on the officer's testimony that "[i]n [his] twenty-three years, [he hasn't] seen a case where someone confessed to something falsely . . . of cases that have proceeded to court."
In commenting on why there was no further corroboration for the defendant's confession, the officer stated, "I don't need to corroborate statements that are made from the defendant because they were made from him. So I take what he tells me is true if it fits the case."
The officer further explained that the police did not corroborate the defendant's confession further after determining that both the defendant's confession and the victim were credible.
See Commonwealth v. Bowden, 379 Mass. 472, 486 (1980).
3. Cumulative errors. As a final matter, the defendant claims the cumulative effect of prejudicial, irrelevant, and inflammatory evidence deprived him of a fair and impartial trial. We disagree. First, he asserts that the Commonwealth's amendments to the dates of the claims in his indictment created unfair prejudice. Because the amendments concerned form and not substance, and did not expand, but narrowed the time frame of the alleged assaults, the change did not prejudice the defendant. See Commonwealth v. Knight, 437 Mass. 487, 492 (2002).
The defendant also argues that to counter the prejudice resulting from the amendments, the judge should have delivered a Bowden instruction to the jury. Not only were the amendments not prejudicial, as discussed above, but even if they were, "a judge is not required to instruct on the claimed inadequacy of a police investigation." Commonwealth v. Boateng, 438 Mass. 498, 506 (2003). Moreover, in this instance, the judge allowed the defense's extensive cross-examination of the testifying officer regarding any alleged inadequacy of the police investigation and did not preclude the jury from considering any potential inadequacy. Id. at 507. There was neither error nor an abuse of discretion.
The defendant's final assertion, that the Commonwealth made improper remarks during its closing argument, also fails. "A prosecutor can address, in a closing argument, a witness's demeanor, motive for testifying, and believability, provided that such remarks are based on the evidence, or fair inferences drawn from it." Commonwealth v. Freeman, 430 Mass. 111, 118-119 (1999). Here, the challenged comments supported the evidence regarding the repeated nature of the assaults. Furthermore, the statements permissibly commented on the victim's credibility and focused on her lack of a motive to lie. See ibid. Although the judge did not instruct the jury regarding these statements specifically, he did explain to the jury that openings and closings are not evidence, that they must decide the case based solely on the evidence, and that they must not be swayed by prejudice. See Commonwealth v. Maynard, 436 Mass. 558, 571 (2002). The Commonwealth therefore properly delivered closing remarks that were both founded in the evidence and reasonably countered the defendant's theory of the case. Because the errors the defendant claimed either did not constitute error or did not prejudice the defendant, any potential cumulative effect is likewise nonprejudicial.
We need not address the defendant's contention that the judge improperly admitted an inflammatory photograph of the victim because the photograph was not admitted in evidence and it is not part of the record. Moreover, the testimony discussing the photograph itself was both relevant and nonprejudicial. The victim's mother merely described the photograph as fairly and accurately depicting her daughter "around the age of nine or ten," resembling the victim's appearance at the time of the alleged incidents, rather than how she appeared at age sixteen at trial.
In particular, the defendant cites the Commonwealth's statements that the defendant "used and abused [the victim] at his own liking," and that the victim "had to make herself available for the defendant's every sexual whim and fancy," and felt ashamed every time the defendant "decided to put his hands on her."
Judgments affirmed.
By the Court (Green, Vuono & Meade, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 30, 2015.