Opinion
No. 15–P–370.
10-04-2016
COMMONWEALTH v. Gibby PERRINE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant was convicted of numerous criminal offenses arising out of a violent sexual encounter with a woman he befriended at a bar in Chicopee. He raises three issues on appeal. First, he argues that the judge improperly restricted his opportunity to cross-examine the detective who interviewed him at the police station. Second, he claims that the judge erred by permitting the Commonwealth's forensic scientist to testify that loose hairs found in the victim's jeans had been forcibly removed. Lastly, the defendant contends that it was improper under Mass.R.Crim.P. 38(a), 378 Mass. 916 (1979), for a judge other than the trial judge to respond to a question from the jury where the trial judge was not sick or disabled and the substitute judge did not certify that he was familiar with the record. For the reasons discussed below, we affirm the convictions.
A grand jury returned indictments charging the defendant with one count of kidnapping, six counts of rape, and one count of attempted rape. One of the rape charges was dismissed by the judge on the defendant's motion for a required finding of not guilty. The jury acquitted the defendant on two additional rape charges and found him guilty of the remaining charges.
Background. We recite the facts from evidence presented at trial, reserving specific details for later discussion. On the evening of January 4, 2013, the victim, who was a reservist in the United States Air Force, went to the “Say When Cafe” where she expected to socialize with fellow reservists. At some point in the evening, the victim, whom we also shall call Claudia, began talking to the defendant, who was working on a construction project at the Air Force Base. The two left the bar together around 11:30 P.M. and went to the defendant's apartment which was located nearby. Once in the apartment, the two began to kiss and engaged in some consensual sexual activity. However, when Claudia drew the line, the defendant became violent and forced her to engage in a series of sexual acts. Claudia attempted to leave the apartment but the defendant physically restrained her. She eventually escaped and called the police.
A pseudonym.
Officers from the Chicopee police department responded and made arrangements to transport Claudia to the hospital by ambulance. Then, they went to the defendant's apartment and spoke with him. The defendant acknowledged that he had a female visitor that evening and that the two had been kissing. The defendant was dressed in his underwear and a pair of woman's underwear was on the floor. The defendant had scratches and bruises on his body and clumps of hair were on the floor and the bed. The defendant was taken to the police station where he was interviewed by Detective James Gawron. A videotape of the interview was played for the jury and introduced in evidence. During the interview the defendant stated, among other things, that he had engaged in consensual sexual activity with a woman, whose name he did not recall, and that he had pulled her hair while they were kissing.
1. Alleged limitation on cross-examination. The defendant argues that the judge erred by denying him a full opportunity to cross-examine Detective Gawron. Counsel asked several questions about the “crude” language the defendant and the detective used during the interview. During this line of questioning the following exchange occurred.
Defense counsel: “And at some point it is sort of a crude conversation between two grown men talking about sex, right?”
Witness: “Yes.”
Defense counsel: “And it's fair to say that he didn't anticipate he was going to be having a conversation with you that morning about sex, it's not like you guys had this appointment?”
Prosecutor: “Objection.”
The court: “Hold it, sir. Objection sustained. Can I see counsel sidebar?”
“(Beginning of Sidebar Discussion)”
The court: “[Defense counsel], you're going through what—“
Defense counsel: “I'm done with that line of questioning.”
The court: “Please don't interrupt me.”
Defense counsel: “Okay.”
The court: “—is going through what they've already seen. The DVD speaks for itself. It's inappropriate inquiry, so move on, please.”
Defense counsel: “Sure. Certainly.”
“(End of Sidebar Discussion)”
Defense counsel: “I have no further questions.”
A criminal defendant has the constitutional right to cross-examine prosecution witnesses, however, that right is not absolute. See Commonwealth v. Sealy, 467 Mass. 617, 623–624 (2014). The judge has discretion to determine the scope and the extent of cross-examination. See Commonwealth v. McGhee, 472 Mass. 405, 426 (2015). “If a defendant believes that the judge improperly restrained his cross-examination of a witness, the defendant must demonstrate that the judge abused his discretion and that he was prejudiced by such restraint.” Commonwealth v. Sealy, supra at 624.
Here, there was no abuse of discretion. To begin, the Commonwealth's objection to counsel's question soliciting the detective's knowledge of what the defendant “anticipated,” was properly sustained because it called for speculation. See Commonwealth v. Carver, 33 Mass.App.Ct. 378, 383 (1992). Second, although the defendant characterizes the judge's ruling as excluding “an entire line of questioning,” the judge did no more than exclude further questions on one particular topic, namely, the crude language which the jurors heard when the videotape was played. Where, as here, it is evident that further questioning on the use of crude language would not lead to any additional relevant evidence, the judge did not abuse his discretion by instructing counsel to “move on.”
2. Admission of the hair evidence. Prior to trial, the judge conducted a hearing as proscribed by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to determine the admissibility of trace evidence consisting of eleven human hairs recovered from the victim's jeans. The hair was examined by Alison Jackobek, a forensic scientist employed in the criminalistics unit of the State police crime laboratory. She testified that eleven hairs had elongated roots indicating, in her opinion, that they had been forcibly removed. Counsel moved to exclude Jackobek's testimony on two grounds: first, he argued that, in the absence of DNA testing, the hairs at issue were not adequately identified as belonging to the victim; and second, he claimed that given his defense that the encounter with Claudia was entirely consensual, the evidence was unduly prejudicial. The judge disagreed and permitted the Commonwealth to introduce the evidence. The defendant claims that the judge erred and that the error was compounded by the prosecutor's reference to the evidence in her closing argument.
“The relevance threshold for the admission of evidence is low. Evidence is relevant if it has a rational tendency to prove an issue in the case, or render a desired inference more probable than it would be [otherwise]. It need not establish directly the proposition sought; it must only provide a link in the chain of proof. Relevant evidence is admissible unless unduly prejudicial, and, [i]n weighing the probative value of evidence against any prejudicial effect it might have on a jury, we afford trial judges great latitude and discretion, and we uphold a judge's decision in this area unless it is palpably wrong.” Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004) (alterations in original; quotations and citations omitted).
The evidence in question was clearly relevant and we discern no error or abuse of discretion in the judge's ruling. Although the hair was not tested, it was collected from Claudia's jeans which supported a reasonable inference that the hair belonged to her. See Commonwealth v. Zemtsov, 443 Mass. 36, 38 (2004). Furthermore, evidence that some of the hair had been removed forcibly was relevant because it made more probable the Commonwealth's contention that force—to some degree—had been used against the victim. Finally, although the evidence tended to inculpate the defendant, it was not unduly prejudicial in view of the fact that the defendant admitted to pulling the victim's hair.
Nor are we persuaded, as the defendant contends, that the prosecutor's comments in closing argument, to which there was no objection, should change the analysis. The prosecutor stated the defendant pulled out a clump of the victim's hair. The victim testified that the defendant pulled her hair and the police observed clumps of blond hair in the apartment. As we have noted, the defendant admitted to this conduct. In sum, the prosecutor's comments provide no basis for concluding that the defendant was unduly prejudiced.
3. Alleged violation of Mass.R.Crim.P. 38(a). During deliberations, the jury sent the following question to the judge: “Are all of the charges in order of when they happened?” The trial judge was not available to answer the question in person because he was not in the court house at the time. Another judge of the Superior Court discussed the question with the trial judge and then conferred with counsel and the defendant to frame a response. The substitute judge informed the parties that the trial judge's “inclination was to answer the [question] by simply stating no.” The Commonwealth agreed with this approach, but defense counsel did not. He asserted that the answer to the question should not go beyond stating that the jury should rely on their collective memories in determining the order of events. After further discussion, during which the substitute judge pressed counsel so that he could “accurately convey” counsel's position to the trial judge, the substitute judge took a short recess and spoke with the trial judge a second time. When the court reconvened, the substitute judge informed the parties that he had relayed their “competing positions with respect to answering the questions” and stated that the trial judge “has directed me to tell you ... [that] his instruction to the jury [will be]: The indictments are not necessarily in any chronological order, period. The order of the incidents, comma, if any, comma, are to be determined by your collective memory based on the evidence you heard in this courtroom.”
The record indicates that the trial judge was in a neighboring county presiding over medical malpractice tribunals.
Counsel for the defendant objected to the first portion of the answer, but did not object—at any point—to the participation of the substitute judge. The defendant claims, as he did at trial, that the answer, as given, invaded the province of the jury. He also argues, for the first time, that it was a violation of rule 38(a) for a judge other than the trial judge to answer the jury's question.
The defendant also argues that counsel was ineffective for failing to object. Given our conclusion that there was no substantial risk of a miscarriage of justice, it follows that there was no ineffective assistance of counsel.
The defendant's first contention requires little discussion. The trial judge's answer to the jury's question was fair and even-handed, and we reject the defendant's assertion that the answer improperly invaded the province of the jury.
We now turn to the question whether there was a violation of rule 38(a). The rule provides: “If by reason of death, sickness, or other disability the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge of that court or properly assigned to that court, upon certifying in writing that he has familiarized himself with the record of the trial, may proceed with and finish the trial.”
There is no dispute that the trial judge was neither sick nor disabled, and the substitute judge did not certify in writing that he had familiarized himself with the record of the trial. However, the trial judge presided over the trial in person until after the jury began their deliberations and, more importantly, was available to discuss the answer to the jury's question and did in fact approve of the answer that was given. In these circumstances, we need not reach the issue whether the substitute judge “proceed[ed] with and finish [ed] the trial” because we conclude that even assuming a violation, there was no substantial risk of a miscarriage of justice. Mass.R.Crim.P. 38(a). In so concluding, we take the same approach as the Supreme Judicial Court in Commonwealth v. Taylor, 463 Mass. 857, 867 (2012), which involved nearly identical circumstances .
We recognize that the parties in Taylor communicated directly by telephone with the trial judge, but conclude that this difference is of no consequence where, as here, the substitute judge spoke with the trial judge before and after he conferred with the parties and informed the trial judge of the parties' respective positions before a final answer to the jury's question was composed.