Opinion
15-P-137
01-25-2017
COMMONWEALTH v. Phillip R. GAUTREAU.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Phillip R. Gautreau, appeals from his convictions of assault with intent to rape and assault and battery. See G. L. c. 265, § 24 ; G. L. c. 265, § 13A. The defendant asserts that the prosecutor exceeded the bounds of permissible argument in her opening statement and closing argument, and that the jury instructions were inadequate in two respects. We affirm.
The defendant was acquitted of one count of attempted murder.
1. Opening statement . For the first time on appeal, the defendant contends that the prosecutor overstepped in her opening statement by appealing to the emotions of the jurors. When "the defendant [does] not object to the statements at trial, we review to determine whether any error created a substantial risk of a miscarriage of justice." Commonwealth v. Joyner , 467 Mass. 176, 188 (2014). A substantial risk arises "if the evidence and the case as a whole, Commonwealth v. Gabbidon , 398 Mass. 1, 5 (1986), [leaves the court] with a serious doubt that the defendant['s] guilt ha[s] been fairly adjudicated." Commonwealth v. Amirault , 424 Mass. 618, 646-647 (1997). "Our power to upset a completely adjudicated conviction on this ground is an extraordinary one which should only be exercised in the most unusual circumstances." Id . at 646.
The prosecutor began her opening statement as follows. "I'm going to drive you in the woods, I'm going to rape you, then I'm going to kill you." The prosecutor then vividly described the facts the Commonwealth intended to prove, describing the events of the night from the perspective of the alleged victim, the defendant's girl friend.
"The proper function of an opening is to outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence." Commonwealth v. Staines , 441 Mass. 521, 535 (2004), quoting from Commonwealth v. Croken , 432 Mass. 266, 268 (2000). The opening may have been dramatic, but a dramatic narrative which hews to the evidence is permitted. The prosecutor may state what she "expects to be able to prove or support by evidence." Commonwealth v. Fazio , 375 Mass. 451, 454 (1978). Even if provocative, the opening "statement was otherwise firmly and fairly grounded on what [the prosecutor] reasonably expected to prove, see Commonwealth v. Johnson , 429 Mass. 745, 748 (1999), and did not create a substantial [risk] of a miscarriage of justice." Commonwealth v. Silva , 455 Mass. 503, 514 (2009).
The prosecutor also described the passing motorist who gave the girl friend a ride as "her savior." That characterization may have been better left unsaid. See Commonwealth v. Degro , 432 Mass. 319, 322 n.4 (2000) ("[W]e caution prosecutors in particular, because they deal with subject matter that tends to be emotional, to proceed with caution that their opening statements do not slip into emotionally provocative argument"). Passing on whether the reference to the driver was error, a question we need not reach, there was no substantial risk of a miscarriage of justice. The anticipated evidence at trial was that the driver extricated the victim from a dangerous situation. While the phrase may more appropriately be characterized as argument, it did not misstate the Commonwealth's version of the facts. Furthermore, the judge instructed the jury that opening statements are not evidence. Commonwealth v. Morgan , 449 Mass. 343, 362 (2007).
2. Closing argument . The defendant also claims there were several errors in the prosecutor's closing argument, as to which there was no objection. We review these claims for a substantial risk of a miscarriage of justice. Joyner , 467 Mass. at 188.
Closing arguments are restricted to the evidence and inferences that can be drawn from it. Commonwealth v. Jones , 432 Mass. 623, 628 (2000), citing Commonwealth v. Kozec , 399 Mass. 514, 516-517 (1987). "We consider the remarks in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial." Commonwealth v. Francis , 450 Mass. 132, 140 (2007).
a. Rhetorical questions . The defendant claims that the prosecutor erred by vouching for the credibility of the defendant's girl friend by using burden-shifting rhetorical questions. For example, the prosecutor inquired:
"Do you believe that she just made all that up? That she was just putting on a show because she wanted to make up some story against ... Gautreau, because he wanted her back in the car and didn't want her dancing in the field? Is that someone—do you believe that that's what she was doing that night? ... Is that someone making up a story, or is that someone who's really been hurt, on the side of the road that night?"
Rhetorical questions in closing argument which do not shift the burden of proof to the defendant are permissible. See Commonwealth v. Nelson , 468 Mass. 1, 12-13 (2014). Here, the prosecutor made fair comment on the weight of the evidence, the credibility of the witnesses, and the permissible inferences to be drawn from the evidence. The rhetorical questions were in response to the defendant's closing argument; they were linked to the evidence, contained no injection of personal beliefs, and did not suggest that the defendant should have produced further evidence or testimony. See ibid .; Commonwealth v. Flint , 81 Mass. App. Ct. 794, 807 (2012).
Later in closing argument the prosecutor stated:
"Does that make sense that having not talked about this for months and knowing her purpose of being there for the hearing, she might have left out, oh, we did go back in the car, and there was a search for the keys, as opposed to the other things that were the most important parts of her testimony? It's absolutely reasonable, ladies and gentlemen. And she said, when I asked her, what was your demeanor that day, she said, I was a mess. Is that believable? Something like this happening to her, going months without talking to anybody, coming in at the hearing and testifying to it? Does it make sense she might leave out those little details?"
In his closing, the defendant also raised concerns about the timeline of the night's events, indicating that the time period in question did not align with the prosecution's case. The prosecutor responded:
"Do you think it's reasonable that [the girl friend] might not have the exact time frame, that she might not have been looking at her watch while [Gautreau] was strangling her, while she believed that she was going to die, while he was threatening to kill her and rape her and pulling her pants down and thrusting his penis against her body?"
These arguments were made in response to the defendant's challenge to the girl friend's credibility, and were permissible. Silva , 455 Mass. at 515. Nor did the rhetorical questions shift the burden of proof to the defendant simply by commenting on the evidence supporting the defendant's theory of the defense. See Nelson , 468 Mass. at 12-13.
The defendant also contends that the prosecutor attacked the credibility of the defendant, who testified at trial, by stating, "Because what I would suggest to you is that even in his testimony, [the defendant] was all over the map. There were inconsistencies everywhere." The disparities in the defendant's memory of the events in question emerged during cross-examination, from which the prosecutor developed her statement regarding his credibility. The defendant's credibility was at issue, and the closing argument was not improper.
b. Appeal to sympathy or passion . The defendant asserts that the prosecutor erred in appealing to the sympathies and inflaming the passions of jurors by (1) disparaging the defense and (2) commenting on the defendant's right to cross-examine witnesses. The defendant points to the prosecutor's statement that defense counsel wanted to "try to get Ms. ... on cross-examination," followed by a list of questions paraphrasing that cross-examination.
The "essence" of cross-examination is to undermine a witness's testimony. Commonwealth v. Grandison , 433 Mass. 135, 143 (2001). We think the jury retained adequate sophistication to understand that both defense counsel and the prosecutor presented their respective cases in a forceful but appropriate manner. See Commonwealth v. Cadet , 473 Mass. 173, 181 (2015). Closing arguments may contain "enthusiastic rhetoric, strong advocacy, and excusable hyperbole." Commonwealth v. Costa , 414 Mass. 618, 629 (1993).
c. Burden shifting . The prosecutor called the defendant's story into doubt by posing the following questions, all of which were based on the defendant's testimony.
"How is he explaining two and a half hours? He wants you to hold that against [the girl friend], but he doesn't want to have to hold that against himself and explain that himself. Did he explain that to you, ladies and gentlemen? Does his story make sense for a time frame?"
This aspect of the prosecutor's closing highlights, but does not cross, the line between permissible use of rhetorical questions and improper burden shifting onto the defendant. See Nelson , 468 Mass. at 12-13. See also Commonwealth v. Johnson , 463 Mass. 95, 112 (2012), quoting from Commonwealth v. Amirault , 404 Mass. 221, 240 (1989) ("[A] ‘prosecutor ... cannot make statements that shift the burden of proof from the Commonwealth to the defendant’ "). Where, as here, the defendant testified, and the closing argument constitutes a comment on the testimony offered, we are persuaded that no error was committed. See, e.g., Commonwealth v. Tu Trinh , 458 Mass. 776, 788 (2011) ("Our scrutiny of the record persuades us the prosecutor's remarks fell into the permissible area of comments highlighting corroboration of credibility and consistency and did not cross over into burden shifting"); Commonwealth v. Lugo , 89 Mass. App. Ct. 229, 235 (2016).
d. Vouching . The defendant also asserts that the prosecutor erred by vouching for the credibility of the defendant's girl friend. We do not consider the statements quoted in part 2.a., supra ("Does that make sense ...") to be either a statement of personal opinion or a form of vouching. See Lugo , supra at 236. The statement was an assertion, made in the context of argument. See generally Cadet , 473 Mass. at 181 (jurors possess adequate sophistication to separate argument from fact).
The defendant also contends that it was improper for the prosecutor to argue that the first complaint witness had no bias, thus vouching for her credibility. "A prosecutor may marshal the evidence in closing argument, and, in doing so, may urge the jury to believe the government witnesses and disbelieve those testifying for the defendant. See Commonwealth v. Shea , 401 Mass. 731, 738-739 (1988)." Commonwealth v. Beaudry , 445 Mass. 577, 587 (2005). Read in context, the prosecutor's argument simply "point[s] to the logical reasons a witness's testimony should be believed." Commonwealth v. Koumaris , 440 Mass. 405, 414 (2003). This argument is materially different from remarks considered improper, such as "arguing that the [alleged victim] was credible because she was willing to testify at trial." Commonwealth v. Dirgo , 474 Mass. 1012, 1017 (2016), citing Beaudry , supra at 585.
The prosecutor stated, "It's very difficult to suggest [the driver] came and lied to you. She clearly has no bias to come and lie to you in this case.... I would suggest she testified in a manner that was very credible about her experience that night, and we can trust what she has to say."
The use of the words "we can trust what she has to say" raises a red flag, however, particularly in the context of recruiting the jury to "trust" the Commonwealth's witness. See Commonwealth v. Finstein , 426 Mass. 200, 205 n.1 (1997) (counsel shall not state personal opinion about credibility of witnesses using "I think," "I feel," "I believe"); Commonwealth v. Wilson , 427 Mass. 336, 352 (1998) ("Improper vouching can occur if an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury"); Commonwealth v. Burts , 68 Mass. App. Ct. 684, 688 (2007) ("We are troubled by the prosecutor's repeated use of the pronoun ‘we’ " in closing argument). However, this reference was singular, fleeting, and in context, fell within the parameters of acceptable argument. See Lugo , 89 Mass. App. Ct. at 236.
The words were preceded by the phrase "I would suggest ...."
Even if some aspect of these remarks were found wanting, we discern no substantial risk of a miscarriage of justice. Given the evidence at trial, it cannot be said that any error in the closing argument materially influenced the verdict. See Commonwealth v. Amirault , 424 Mass. at 646-647. The first complaint witness was a neutral passerby who had no prior affiliation with either the defendant or the victim. The challenged statement was singular and isolated in an otherwise proper closing argument. The acquittal on the attempted murder charge suggests that the jury were not swayed by emotion or prejudice. See Commonwealth v. Howell , 49 Mass. App. Ct. 42, 48 (2000). Finally, the judge instructed the jury that closing arguments are not evidence. See Jones , 432 Mass. at 629. This is not the "extraordinary case[ ]" in which a conviction should be set aside. Amirault , supra at 646.
3. Instructions . a. Lesser included offense . The defendant contends that it was error for the judge to deny defense counsel's request for an instruction on assault as a lesser included offense of assault with intent to rape. He argues that there was sufficient evidence of intoxication to warrant the instruction, from which the jury could have found that he lacked the specific intent to rape.
Assault is a lesser included offense of assault with intent to rape. Commonwealth v. Lewis , 9 Mass. App. Ct. 842, 843 (1980). "When the evidence permits a finding of a lesser included offense, a judge must, upon request, instruct the jury on the possibility of conviction of the lesser crime" (emphasis omitted). Commonwealth v. Norris , 462 Mass. 131, 144 (2012), quoting from Commonwealth v. Woodward , 427 Mass. 659, 662-663 (1998). When determining whether there is a rational basis for a conviction of the lesser included offense, all reasonable inferences must be resolved in a defendant's favor. See Commonwealth v. Egerton , 396 Mass. 499, 503 (1986) ; Commonwealth v. Gonzalez , 67 Mass. App. Ct. 877, 880 (2006). A judge need not, however, "reconstruct all possible factual scenarios subsumed in the evidence presented, no matter how unreasonable, and charge the jury accordingly." Egerton , supra at 505. A mere "hypothesis" unsupported by the evidence does not provide a rational basis for conviction on the lesser included offense. Id . at 504. Commonwealth v. Vick , 454 Mass. 418, 430 (2009).
The flaw in the defendant's argument is that there is no set of facts supported by the evidence that would have permitted a rational jury to conclude that the defendant committed a simple assault. Even if the defendant lacked the specific intent to rape, the victim's testimony was that he grabbed her arms, pulled her pants down, and thrust his penis against her. The defendant testified to an entirely different version of the facts—he either denied every allegation or did not remember what happened. Neither the defendant's denial, nor his cloudy memory, serve to provide a factual basis for a claim of assault rather than assault and battery. See Egerton , 396 Mass. at 504 (defendant's alibi defense, without more, "would not provide a basis for requiring a lesser included offense instruction ... because such evidence in no way negated the victim's testimony on the defendant's specific intent to rape"). See also Commonwealth v. Hall , 50 Mass. App. Ct. 208, 213 (2000). Moreover, the judge instructed the jury that they were entitled to consider evidence of the defendant's intoxication in deciding whether the Commonwealth had proven beyond a reasonable doubt that the defendant had acted with the specific intent to rape. If the jury found the defendant incapable of forming the specific intent to rape, the judge explained, they must acquit him of assault with intent to rape.
The judge properly instructed the jury that the Commonwealth could prove the element of assault in either of two ways: by showing that the defendant committed an attempted battery or by showing that he acted with the intent to cause apprehension or fear of immediate bodily harm. See Commonwealth v. Leonard , 90 Mass. App. Ct. 187, 191 (2016).
At some points during his testimony, the defendant conceded nothing more than a foggy memory. On redirect examination, however, when asked whether it was fair to say that he could not remember the entire interaction with the girl friend because he had been intoxicated at the time, he responded in the affirmative.
b. Specific unanimity . The defendant also argues that the judge erred in not giving, sua sponte, a specific unanimity instruction on the count charging assault and battery, because the victim testified to multiple touchings. In the absence of a request, the judge was not obligated to give the instruction. See generally Commonwealth v. Keevan , 400 Mass. 557, 566-567 (1987). The judge gave a general unanimity instruction, clarified that the acts constituting assault and battery must be distinct from the acts constituting the other charges, and specified which act the jury should consider on the assault and battery count. "A ‘charge is to be considered as a whole to determine whether it is legally correct, rather than tested by fragments which may [or may not] be open to just criticism.’ " Green, petitioner , 475 Mass. 624, 629 (2016), quoting from McHoul, petitioner , 445 Mass. 143, 156 (2005), cert. denied, 547 U.S. 1114 (2006). There was no error in the instructions.
The judge explained that "the acts that constitute assault and battery, must be separate touchings than those that constitute those other two crimes.... I believe the Commonwealth's theory is that the touching that occurred by Mr. Gautreau allegedly dragging Ms. ... on the road, would constitute an assault and battery. That's their theory. I just tell you that so you can focus your attention on what the allegation is."
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Judgments affirmed .