Opinion
14-P-1706
04-15-2016
COMMONWEALTH v. WILLIAM SALINAS.
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
A Superior Court jury convicted the defendant on indictments charging aggravated rape, breaking and entering, and assault with intent to rape (two indictments). On appeal, he argues that his convictions must be reversed because of errors in the prosecutor's summation. We affirm.
Background. The victim testified that on October 25, 2011, the defendant (to whom she once had spoken briefly but otherwise did not know) entered her apartment through a back door, tied a shirt around her mouth to gag her, bound her hands behind her back with shoelaces, forced her onto her knees with her face pressed against the sofa, and sexually assaulted her in various ways (including a digital rape). According to her, the defendant ran away when he heard a siren, after which she eventually -- in hysterics -- was able to telephone for help.
The defendant gave a statement to police regarding the incident and testified at trial. Although his pretrial statement and trial testimony differed in some respects, in both he sought to raise a defense of consent (including with regard to digital and oral sex, and to the victim's being bound). He admitted to having heard the siren, but claimed that this was not why he left. According to him, the victim became angry when it became apparent that he wanted to escalate to intercourse, at which point he ceded to the victim's wishes and left. He also offered that the victim might be claiming rape because she was mad that he had forgotten to untie her when he left. Apparently rejecting the defendant's account and crediting the victim's, the jury convicted him.
Discussion. The defendant argues that he is entitled to a new trial because of various errors in the prosecutor's closing argument. Specifically, he argues that "[t]he Commonwealth impermissibly shifted the burden of proof to the Defendant in its closing argument, misstated the law and the jurors' obligations, and impermissibly commented on the Defendant tailoring his story to explain the testimony he heard at trial." As the defendant acknowledges, only the claim of alleged burden shifting was preserved.
In the course of her closing argument, the prosecutor stated that the jury could doubt the victim's testimony only if they credited the defendant's version. This was improper as the jury were free not to credit the victim's testimony regardless of whether they accepted the defendant's version (and regardless of whether the defendant ever provided his version prior to or at trial). The defendant also targets a reference by the prosecutor to the defendant's not having posed a certain question to the victim on cross-examination. However, to the extent that the prosecutor's comments amounted to improper "burden shifting," the judge cured that problem through her instructions. See Commonwealth v. Bregoli, 431 Mass. 265, 278-279 (2000). She not only generally instructed the jury that "the law never imposes on a defendant . . . the burden of . . . calling any witness or indeed of presenting any evidence whatsoever," she also strongly reiterated the point that the burden was "always" on the Commonwealth after specifically expressing that the prosecutor's statement "'[i]n order to disbelieve . . . the alleged victim, you must believe the defendant' . . . is not completely accurate or legally true and I'm concerned it could be confusing . . .as to . . . the burden of proof. . .with regard to the obligations of the Commonwealth here."
The context of that reference is as follows. In his own summation, the defendant argued that one reason the jury should not credit the victim's testimony was that she never explained how she freed herself from the shirt that she stated the defendant had used to gag her. In response, the prosecutor argued that "you're not to believe her because she didn't explain how she got the shirt off? She wasn't asked by the Commonwealth and interestingly, defense counsel never asked either. . . ."
We discern no merit in the defendant's remaining arguments. The prosecutor did not improperly "vouch" for the victim, nor did she make "an impermissible appeal to the jury to decide the case on the basis of sympathy" for the victim. Commonwealth v. Kozec, 399 Mass. 514, 520 (1987). Her argument that the defendant may have "tailored" his version of the incident to try to explain away the Commonwealth's forensic evidence did not cross the line set forth in Commonwealth v. Person, 400 Mass. 136, 137, 139-140 (1987), and Commonwealth v. Kowalski, 33 Mass. App. Ct. 49, 53-54 (1992), especially given that the primary focus of the prosecutor's remark was statements the defendant made during the police investigation, not at trial. In any event, even if any reference to the defendant's "tailor[ing]" his trial testimony had been better left unsaid, it did not come close to creating a substantial risk of a miscarriage of justice.
The prosecutor's reference to the victim's subjecting herself to the medical regimen offered at the hospital -- the so-called "Plan B" medication to prevent pregnancy, and medications to prevent sexually transmitted diseases -- was highly probative of the defendant's claim of consent.
Judgments affirmed.
By the Court (Green, Trainor & Milkey, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: April 15, 2016.