Opinion
No. 15–P–507.
09-02-2016
COMMONWEALTH v. Steven WINITZER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of rape of a child and indecent assault and battery on a child. He appeals, arguing that the judge erred in questioning potential jurors during voir dire about their views on scientific evidence, and in failing to exclude evidence of the victim's demeanor during his testimony. He also claims the Commonwealth lost or destroyed exculpatory evidence making his statements involuntary. We affirm.
Voir dire questioning. At the Commonwealth's request, and over the defendant's objection, the trial judge questioned potential jurors during individual voir dire about whether they “believe[d] that the Commonwealth can never prove its case beyond a reasonable doubt unless it presents scientific corroboration of eyewitness testimony” (the “CSI” question; see Commonwealth v. Perez, 460 Mass. 683, 689 & n. 10 [2011] ), or some variation of that question.
The prosecutor argued that, because of a question asked by the jury in the first trial (which ended in a mistrial)—“is testimony evidence”—the potential jurors should be questioned in order to screen out those with an “unintelligent bias,” that is, those who would require forensic evidence to convict a defendant of rape.
During the individual voir dire, a number of prospective jurors were excused for cause without being asked the CSI question. Of those who were asked that question, a majority answered in the negative and the judge then inquired about the prospective juror's impartiality. To those who answered the initial question ambiguously or affirmatively, the judge asked follow-up questions about whether the individual would automatically acquit if the Commonwealth failed to present scientific evidence. Only two prospective jurors answered yes to the additional questions, and both were excused. Of the jurors who engaged in the CSI colloquy, fourteen were seated; two were deemed alternates, thus, twelve of the fourteen deliberated.
After posing several questions, the judge asked the first of the two jurors, “Are there circumstances where you can prove a case beyond a reasonable doubt without scientific evidence?” The juror responded, “No.” The juror was excused and the defendant did not object. The second juror was asked, “Do you agree or disagree with this statement: The Commonwealth can never prove a criminal case beyond a reasonable doubt unless it presents scientific evidence?” The juror said, “Yes.” The judge then asked, “So if the Commonwealth presented eyewitness testimony, but there was no corroborative evidence in the nature of DNA or fingerprints or ballistics evidence, where that's relevant and so forth, would you automatically find the defendant not guilty?” The juror responded, “I would need DNA evidence.” The juror was excused and the defendant did not object.
“ ‘We afford a trial judge a large degree of discretion in the jury selection process.’ The judge's duty is to ‘examine jurors fully regarding possible bias or prejudice where “it appears that there is a substantial risk that jurors may be influenced by factors extraneous to the evidence presented to them.” ‘ “ Commonwealth v. Perez, 460 Mass. at 688 (citation omitted). Thus, “[t]he scope of a voir dire is in the sound discretion of the trial judge and will be upheld absent a clear showing of abuse of discretion.” Id. at 689.
Here, the judge asked the members of the venire virtually the same questions about bias as those asked in Perez. In that case, the Supreme Judicial Court concluded that the “the trial judge did not abuse his discretion questioning the venire about their views on scientific evidence. The questions were tailored to ensure that seated jurors were capable of deciding the case without bias and based on the evidence. The questions did not suggest to potential jurors that a lack of scientific evidence could not be considered in determining whether a reasonable doubt existed as to the defendant's guilt.” Id at 691. We come to the same conclusion here.
The judge in this case was the same judge as in Perez.
“The question[s] posed in this case did not commit the jury to a verdict in advance and did not have the effect of creating a jury comprised only of individuals predisposed to convicting the defendant based solely on the Commonwealth's evidence, without consideration of the scientific evidence the Commonwealth failed to introduce.” Commonwealth v. Gray, 465 Mass. 330, 340 (2013). In addition, keeping in mind the skepticism of the Supreme Judicial Court with regard to the “CSI effect,” here the questioning was done by a trial judge who has, “as more time has passed ... seen more evidence of [the ‘CSI effect’] prompting him to ask the question during voir dire.” It was, therefore, “prudent and reasonable” for the judge to question potential jurors based on this experience and previous prejudices he had encountered in empaneling juries. See Commonwealth v. Heang, 458 Mass. 827, 856 (2011) (to ensure the defendant's right to a fair trial “[i]t was prudent and reasonable for the judge to question potential jurors about their ability to remain impartial if there was gang-related testimony at trial”). We conclude that none of the questions asked and none of the instructions given amounted to a command to ignore the lack of scientific evidence. Gray, 465 Mass. at 341. As a result, there was no error and certainly no abuse of discretion in questioning the venire about their views on the necessity of scientific evidence. Perez, supra.
At oral argument, the defendant argued that the CSI question, combined with the judge's failure to give an instruction pursuant to Commonwealth v. Bowden, 379 Mass. 472, 485–486 (1980), contributed to an imbalance in the judge's instructions to the jury. He did not make that argument in his brief. In any event, given the facts of this case, we find it unpersuasive.
--------
Victim's demeanor. The defendant next contends that the judge erred in failing to exclude evidence of the victim's educational and psychological problems which, he argues, created an atmosphere of sympathy and gave rise to an inference that the victim's difficulties were the result of sexual assault. Prior to trial, the judge denied the defendant's motion in limine to exclude any testimony regarding the victim's emotional state during the period of the alleged abuse. The judge determined that evidence of the victim's poor academic performance and “emotional upset” was admissible in order to give the jury the full picture of the victim's life.
Dr. David Sorenson (a child psychiatrist at the Anna Jaques Hospital) and Alicia Mellor (a Methuen school psychologist) both examined the victim in September, 2004, and in April and May, 2005; they testified at trial about the emotional, social, behavioral, and academic difficulties the victim had experienced throughout his life.
The prosecutor presented evidence of the victim's academic and emotional difficulties in order to paint a clearer picture for the jury of the victim's life during and after the alleged sexual abuse. This was done, the prosecutor argued, to rebut the defense theory that the victim had psychological issues and tended to fabricate situations that had not occurred, including the allegations he made against the defendant. The relevance and probative value of this evidence were “matters entrusted to the trial judge's broad discretion and are not disturbed absent palpable error.” Commonwealth v. Rosa, 468 Mass. 231, 237 (2014). See Mass. G. Evid. § 403 (2016). We see no error.
During her closing argument, the prosecutor argued that the victim had “obstacles [in his life] that began long before the defendant ever laid a hand on him.” She also commented on the testimony of Mellor and Dr. Sorenson, who had described for the jurors characteristics of the victim's diagnosis of attention deficit hyperactivity disorder and autism-spectrum disorder so that they could understand the reason for the victim's demeanor while testifying. The prosecutor did not argue that the victim's difficulties were the result of sexual abuse. See Commonwealth v. Bishop, 461 Mass. 586, 596 (2012) (judge must weigh probative versus prejudicial value of evidence when such evidence poses a risk of inflaming a jury's emotions). Explanation of the victim's diagnoses was necessary because, as the judge instructed during the final charge, the jury was to consider the “conduct, the character, the demeanor, the appearance of the witness while testifying.” Again, we see no error.
Interrogation. The defendant also argues that “the Commonwealth's failure to properly record [the defendant's] custodial interrogation wherein he allegedly confessed to engaging in criminal activity resulted in the loss and/or destruction of exculpatory evidence and rendered his alleged confession involuntary .”
The interrogating officer, Aaron Little, testified that, at the outset of the defendant's interview on November 26, 2005, he believed that he had properly activated the recording device and placed it on the table between himself and the defendant. He stated that the defendant subsequently refused to allow the interview to be recorded and, as a result, Little pushed the stop button to turn the recorder off. Sometime after the interview was over, Little determined that the portion of the interview he thought had been recorded was, in fact, not recorded. As a result, no recording ever existed of that.
The defendant, on the other hand, testified that the officer had never discussed with him the question of recording the interview and that he did not notice “any kind of recording equipment” during the interview. In addition, he said that the officer was “agitated” and had threatened him. He denied making any incriminating statements.
At the charge conference, defense counsel asked the judge not to give a voluntariness instruction. He pointed out that, while the officer would testify that the defendant had made an admission during the interview, “the defendant states it was a denial.” The judge agreed that a voluntariness instruction could undermine the defendant's contention that there was no admission, and he said that he would not give the instruction. The prosecutor also agreed, so long as it was “clear on the record that there [was] a strategic purpose” for not giving the instruction. The judge responded, “Right. And I think a good one.” The judge did, however, without objection, advised the jury to weigh the proffered evidence of the defendant's unrecorded statements to the police “with great caution .” See Commonwealth v. DiGiambattista, 442 Mass. 423, 447–448 (2004).
The defendant now accuses the Commonwealth of losing or destroying potentially exculpatory evidence, because, he says, if there were a recording, it would corroborate his testimony that he had not made inculpatory admissions and would impeach the officer's testimony that he had. He asks this court “to determine that the Commonwealth's loss of the audio recording of his custodial interrogation was intentional or due to bad faith. Officer Little failed to test the recording device to ensure that it was functioning properly before he began his interview.” The defendant's suggested remedy is to reverse his convictions and remand the matter to the trial court “with the express instruction that the Commonwealth be prohibited from introducing at trial any and all evidence derived directly or indirectly from Officer Little's interview of [the defendant].”
The Commonwealth responds, appropriately, that no part of this argument was made to the trial judge, whether by way of a motion to suppress, a motion to dismiss, a motion to strike the officer's testimony, or even a motion for a new trial. In addition, as noted, the defendant's trial testimony contradicted the facts he now asks us to find, as he testified that he saw no recording equipment at all.
“To succeed on a claim of lost evidence the defendant must demonstrate that the Commonwealth lost evidence in the first instance.” Commonwealth v. Curry, 88 Mass. App Ct. 61, 65 (2015). There simply is no basis here for us to draw that conclusion, even were we to find facts, which is not our role. We see no error and certainly no substantial risk of a miscarriage of justice.
Judgments affirmed.