Opinion
13-P-1166
01-07-2015
COMMONWEALTH v. MILTON RODGERS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On July 30, 2009, the defendant was convicted by a Superior Court jury of three counts of rape of a child, two counts of indecent assault and battery on a child under fourteen, and one count of assault and battery. On August 18, 2010, the defendant was also convicted of being a subsequent offender and a habitual offender on all counts. The defendant now appeals. We affirm.
Discussion. The defendant first argues that the judge erred in not giving a specific unanimity instruction, causing a substantial risk of a miscarriage of justice. We disagree. While "[i]t is beyond dispute that the jury verdict in a criminal trial in this Commonwealth must be unanimous," Commonwealth v. Conefrey, 420 Mass. 508, 511 (1995), the circumstances here show that it was. We review an unobjected-to claim of error in a jury instruction to "determine whether there is an error in the charge that creates a substantial risk of a miscarriage of justice." Commonwealth v. Belcher, 446 Mass. 693, 696 (2006). There was no error here.
A specific unanimity instruction was not required because the Commonwealth did not proceed on alternate theories of guilt. See Commonwealth v. Arias, 78 Mass. App. Ct. 429, 432 (2010) (defining alternate theories of guilt as "separate, distinct, and essentially unrelated ways in which the same crime can be committed"). The Commonwealth made separate arguments for alternate crimes, not alternate ways in which the same crime could be committed. Even if a specific unanimity instruction should have been provided, such omission did not create a substantial risk of a miscarriage of justice. Attached to each verdict slip was the indictment detailing the act that constituted the crime. The jury therefore considered the various acts of each indictment before unanimously deciding each conviction as guided by the judge's general unanimity instructions. We discern no substantial risk that the jury disagreed on which act the defendant committed and still convicted him of the charged crime. See Commonwealth v. Thatch, 39 Mass. App. Ct. 904, 904-905 (1995). Contrast Conefrey, supra at 514.
On the first count, the jury convicted the defendant of the lesser-included offense.
The judge stated, "[W]hen you go to each verdict slip, your verdict needs to be unanimous, which means that all of you need to agree on it." The judge also stated, "The defendant is presumed to be innocent until and unless you, the jury, decide unanimously that the Commonwealth has proved the defendant guilty of each and every element of each charged offense beyond a reasonable doubt."
The defendant also argues that the convictions of indecent assault and battery could be duplicative. For the same reasons that we determine that the jury did decide each conviction unanimously, we find there was no risk of duplicative convictions here. Additionally, the judge's illustration of acts that constitute indecent assault and battery was particularly helpful in reducing the chance of duplicative convictions. See Commonwealth v. Black, 50 Mass. App. Ct. 477, 479 (2000).
The judge provided examples of indecent assault and battery such as "fondling a person's breast, touching a person's buttocks, reaching between someone's legs."
Next, the defendant argues that comments by his own family members conveying their belief in his guilt were inadmissible hearsay. Because defendant did not object, our review is limited to whether this admission was an error that caused a substantial risk of a miscarriage of justice. See Commonwealth v. Miranda, 458 Mass. 100, 114 (2010). The judge effectively instructed the jury that they must decide for themselves what and who to believe. The defendant's use of evidence that came from the allegedly improper testimony weakens his argument, and the judge's instructions directly aimed at family members' comments cured any potentially prejudicial effect. See Commonwealth v. Adams, 434 Mass. 805, 813-814 (2001). See also Commonwealth v. White, 48 Mass. App. Ct. 658, 660-661 (2000).
The defendant only objected to Jason Rodgers's (the defendant's brother) statement, "I told her, I said you didn't tell your mother what you did to her granddaughter, your niece." The defendant did not request any further elaboration after the judge later instructed on how to consider witness credibility.
The judge stated, "So you don't get to go by what other people in the courtroom think. . . . That includes whether it be the mother, the grandmother, the brother. You know, you can't be in the jury room and say, 'Well, they believed this person. So then we're going to believe this person' because other people don't get to come into the courtroom and vouch for people's credibility."
For example, defense counsel elicited testimony from family members that the defendant denied committing the crime and they did not believe his denial. On cross-examination of Jason Rodgers, defense counsel asked about his anger and confirmed that he testified on direct that the defendant "said in response to these inquiries I ain't going to jail. I didn't do nothing."
Finally, the defendant argues that the prosecutor's opening statement and closing argument improperly appealed to the jurors' emotions. First we address the statements as to which defense counsel neither objected nor asked for a curative instruction. We review these "claims to determine whether there was error and, if so, whether it gave rise to a substantial risk of a miscarriage of justice." Miranda, supra. We consider these statements "in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Ibid.
With respect to the opening statement, the defendant now objects that the prosecutor's refrain throughout that the jury should "wait till" they hear from the witnesses was inflammatory. While we cannot discern tone from the cold record, the lack of objection is some indication that the remarks were not inflammatory. See Commonwealth v. Duguay, 430 Mass. 397, 403-404 (1999). In any event, we conclude that the prosecutor was permissibly picking up on the judge's preliminary instruction to the jury in which she stated, "Always remember that when you hear opening statements that it is not evidence, so you have to wait until you actually hear from a witness or get an exhibit and find it credible."
With respect to the closing, the prosecutor may forcefully argue the Commonwealth's case, and that was done here. See Commonwealth v. Wilson, 427 Mass. 336, 350 (1998). The jury's "ability to discount hyperbole and other improper statements, and the trial judge's instructions are generally adequate to cure errors in the argument[]." Commonwealth v. Santiago, 425 Mass. 491, 495 (1997), S.C., 427 Mass. 298, and 428 Mass. 39, cert. denied, 525 U.S. 1003 (1998). The judge instructed the jury not to rely on emotions, stating, "[Y]ou took an oath . . . to our Constitution that you would listen to the evidence, not with your heart, not with your emotions, not reacting to any or everything that you heard in this case but with reason." She also instructed them to leave feelings "aside and just focus on the evidence that's been presented to you." These instructions reduced the likelihood that the jurors were swayed by emotion. See Commonwealth v. Kozec, 399 Mass. 514, 517-518 (1987); Commonwealth v. Kent K., 427 Mass. 754, 761 (1998). There was no substantial risk of a miscarriage of justice.
The defendant argues for the first time on appeal that the prosecutor's reference during closing argument to the victim as a "broken shell" improperly used demeanor to indicate that the rape occurred. Even if this statement were better left unsaid, we do not conclude that it sufficiently affected the jury because the jury observed the testimony and made their own determinations on witness credibility. Nor are we persuaded by the defendant's newly made claims that other remarks by the prosecutor in closing argument constituted improper vouching and therefore reversible error. "A certain measure of jury sophistication in sorting out excessive claims on both sides fairly may be assumed." Kozec, supra at 517. The judge instructed the jury several times that they alone, not the prosecutor or defense attorney, were responsible for determining the credibility of the witnesses. The judge also recommended factors the jurors could use to assess credibility. These instructions reduced the impact of the prosecutor's statements such that the statements did not result in error creating a substantial risk of a miscarriage of justice. See Miranda, 458 Mass. at 114.
We discern no error creating a substantial risk of a miscarriage of justice arising from the prosecutor commenting, "Now there's been a lot of talk about, well, [the victim] didn't fight. And you know what? It's irrelevant and it's disgusting. The question here before you, ladies and gentlemen, did this defendant rape [the victim]." Where defense counsel sought to create a defense that was not proper, the prosecutor's reply here was not improper (although more measured language might have been used). See generally Commonwealth v. Espada, 450 Mass. 687, 699 (2008).
Moreover, the overwhelming evidence of the defendant's guilt persuades us that even if the statements were improper, the jury's judgment was not "substantially swayed" by them. Commonwealth v. Thomas, 429 Mass. 146, 156 (1999). "Where guilt is clear, improper appeals to sympathy, although troubling, are less crucial than 'where the questions are close and difficult.'" Kent K., supra, quoting from Santiago, supra at 501. The deoxyribonucleic acid (DNA) analysis demonstrated that the sperm fraction found on the victim's underwear could be expected to be found in approximately one in eighty-seven sextillion Caucasians, one in seventy-eight quintillion African Americans, and one in 1.8 quintillion Southeastern Hispanics. The victim's friend, Princess, also presented first complaint testimony that supported the victim's credibility. This strong evidence allows us to conclude that the jury's determinations were "not clouded by the improper appeals," but rather were based on the evidence presented. Santiago, 425 Mass. at 501-502.
Another significant statistical calculation showed that the DNA profile was consistent with being a mixture from two or more individuals and approximately one in eleven billion Caucasians, one in 820 million African Americans, and one in 190 million Southeastern Hispanics could be included as being possible contributors.
We next consider the statements from the prosecutor's closing argument that defense counsel did object to at trial, namely the prosecutor's labeling of the defendant as a "child rapist" and her statement that certain witnesses were honest. "The standard for determining whether a conviction must be reversed is whether the prosecutor's improper statements constituted prejudicial error. We consider the cumulative effects of all the errors in the context of the entire arguments and the case as a whole." Wilson, 427 Mass. at 351 (quotation and citation omitted). The prosecutor's comments here were factual and did not exploit the emotional potential of the statements. Contrast Santiago, 425 Mass. at 495. The label of "child rapist" was based on evidence presented that the defendant raped his thirteen year old niece. To the degree this label "could be deemed inflammatory, that was inherent in the odious and brutal nature of the crime[] committed." Commonwealth v. Correia, 65 Mass. App. Ct. 27, 34 (2005). See Commonwealth v. Johnson, 429 Mass. 745, 749 (1999).
At trial, the prosecutor described Jason Rodgers's candor on the stand stating, "He's honest in that moment, ladies and gentlemen, so heartbreakingly honest." The defendant objected, arguing that the prosecutor's statement constituted improper vouching. "It is not improper to make a factually based argument that, due to the demeanor, disclosed circumstances, and appearance of a witness, a particular witness should be believed or disbelieved." Kozec, 399 Mass. at 521. "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." Wilson, 427 Mass. at 352. The prosecutor did not present information as though she had outside knowledge beyond the evidence presented. Additionally, "the jury are presumed to know that the prosecutor is an advocate and to be able to recognize [her] arguments as advocacy and not statements of personal belief." Ibid. (quotation omitted). This did not cross the line into improper argument.
In considering the defendant's various claims, we also note that the fact that the jury acquitted the defendant of one charge and convicted him of a lesser included offense on one rape charge is indicative that the jury carefully weighed the evidence and did not succumb to emotion. See Commonwealth v. Rock, 429 Mass. 609, 616 (1999).
Pursuant to Commonwealth v. Moffett, 383 Mass. 201 (1981), the defendant also made further claims. We have considered these claims but none of them are persuasive.
Judgments affirmed.
By the Court (Kantrowitz, Graham & Katzmann, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 7, 2015.