Opinion
No. 11–P–1433.
2012-08-16
COMMONWEALTH v. William REDMON.
By the Court (TRAINOR, GRAINGER & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On November 18, 2010, the defendant was convicted of four counts of rape of a child, G.L. c. 265, § 23A, and six counts of indecent assault and battery of a child under fourteen, G.L. c. 265, § 13B. On the same day, he was acquitted of one count of indecent assault and battery on a child under fourteen. On December 21, 2010, the defendant pleaded guilty to the second and subsequent offense portions of the charges.
The defendant appeals the convictions, arguing that (1) it was prejudicial error for the trial judge to admit expert witness testimony by Dr. Tishelman, a psychologist, to the effect that it was uncommon for children to lie about sexual abuse, and that said testimony constituted improper vouching for the veracity of the complaining witness; and (2) the prosecutor's closing argument contained facts not in evidence and impermissibly shifted the burden of proof to the defendant, thus creating a substantial risk of a miscarriage of justice. We conclude that the arguments are without merit, and we affirm. We review the defendant's first claim, that Dr. Tishelman's testimony on redirect examination was improperly admitted by the trial judge, under an abuse of discretion standard.
See Commonwealth v. Ostrander, 441 Mass. 344, 356 (2004). “The purpose of redirect examination is to explain or rebut adverse testimony or inferences developed during cross-examination.” Commonwealth v. Marrero, 427 Mass. 65, 69 (1998). “While the purpose of redirect examination is to give witnesses an opportunity to explain or correct testimony given on cross-examination, redirect examination may exceed the scope of cross-examination.” Commonwealth v. Rodriguez, 75 Mass.App.Ct. 235, 245 (2009).
The defendant made contemporaneous objections to the testimony at issue here.
In this case, Dr. Tishelman testified on direct examination by the Commonwealth that “children sometimes or often delay telling somebody ... when they've been sexually abused for a period of time.” Dr. Tishelman also testified to the various reasons why this delay might occur.
On cross-examination, defense counsel asked Dr. Tishelman whether “a child who delays disclosure and comes out with a disclosure of sexual abuse could just be making it up?” Dr. Tishelman answered, “that's possible.” The Commonwealth followed up on redirect examination by asking if it was common, in Dr. Tishelman's experience, for children to lie about sexual abuse. Dr. Tishelman answered that “it hasn't been common” and also that “it's more common for children to lie in the direction of saying they were not sexually abused when they were.”
We conclude that the testimony elicited on redirect was appropriate given the defendant's questions on cross-examination. Put another way, “[h]aving opened the door to this information, the defendant essentially invited the Commonwealth to address the issue on redirect examination.” Commonwealth v. Carnell, 53 Mass.App.Ct. 356, 360 (2001). Moreover, we have in the past rejected a defendant's claim of improper vouching when the testifying expert “neither explicitly or implicitly linked the expert's opinion to the complainant in [the] case, nor directly or indirectly compared the behaviors testified to with those of the complainant.” Commonwealth v. Poitras, 55 Mass.App.Ct. 691, 693 (2002). Dr. Tishelman in this case made no such link or comparison, and it is clear that the expert “based her opinions solely on her training [and] experience.” Id. at 693 n. 3. The judge was within his discretion when he overruled the defendant's objection and allowed the testimony elicited on redirect.
With regard to the defendant's second claim, because defense counsel objected to the prosecutor's closing argument after it was made, but made no objection to the judge's subsequent curative instruction, we review any error in the prosecutor's closing argument under a substantial risk of a miscarriage of justice standard. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005).
The defendant alleges five instances of improper burden-shifting in the Commonwealth's closing argument, four of which are in the form of rhetorical questions asked by the prosecutor. The rhetorical questions relating to (1) the provenance of the complaining witness's vaginal infections, (2) the whereabouts of the mother during the attacks, and (3) the believability of the complaining witness, could not have been perceived by the jury to have shifted the burden of proof onto the defendant, and therefore did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Kozec, 399 Mass. 514, 517 (1987) (“A certain measure of jury sophistication in sorting out excessive claims on both sides fairly may be assumed”); Commonwealth v. Gaudette, 441 Mass. 762, 771 n. 8 (2004); Commonwealth v. Rogers, 43 Mass.App.Ct. 782, 786 (1997). Contrastingly, the rhetorical questions regarding the ladder plainly constituted improper burden-shifting, as they directly questioned the defendant's failure to present additional photographic evidence that could have supported a defense witness's account of one of the alleged assaults. See Beaudry, 445 Mass. at 587. However, any chance of a substantial risk of a miscarriage of justice here was avoided by the judge's forceful instruction issued to the jury directly after the closing arguments,
which directly referenced the rhetorical questions, and stated, inter alia, that “[t]he defendant has no obligation to produce any evidence in this trial.”
See discussion in Commonwealth v. Evans, 439 Mass. 184, 194 (2003).
Although the rhetorical questions here did not ultimately create a substantial risk of a miscarriage of justice, we are nonetheless troubled by the prosecutor's repeated use of the rhetorical device in her closing argument, particularly considering the Supreme Judicial Court's repeated discouragement of the practice. See Commonwealth v. Daye, 435 Mass. 463, 477 (2001); Commonwealth v. Gaudette, 441 Mass. at 771 n. 8;Commonwealth v. Williams, 450 Mass. 879, 890 (2008). Had a comprehensive curative instruction not been given, the result in this case might well have been different.
The defendant's remaining claim of impropriety must also fail, as the prosecutor's statements that the defendant “groomed” the complaining witness and that he had “no boundaries” when it came to children were fair inferences considering the facts in evidence. See Commonwealth v. Gaynor, 73 Mass.App.Ct. 71, 77 (2008). To the extent that we have not addressed other specific arguments made by the defendant, they have not been overlooked. We have considered them and have found them to be without merit.
Judgments affirmed.