Opinion
21-P-98
04-21-2022
COMMONWEALTH v. Rajat SHARDA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted of rape, G. L. c. 265, § 22 (b ), open and gross lewdness, G. L. c. 272, § 16, intimidation of a witness, G. L. c. 268, § 13B, and larceny under $250, G. L. c. 266, § 30. He filed a timely notice of appeal, and subsequently filed a first motion for a new trial. This was denied, and he filed a timely notice of appeal. He subsequently filed a second motion for a new trial, which was also denied. He then filed a timely notice of appeal of that decision. All three appeals have been consolidated.
The defendant was a City of Worcester police officer. The jury could have found the following facts based on the evidence at trial. Further facts are reserved for the discussion section below.
In the early morning hours of August 6, 2013, the defendant drove into the parking lot at Bancroft Tower in Worcester and parked parallel to a sport utility vehicle (SUV) in which the victim and Michael Betancourt were naked in the cargo area having sex. As the defendant exited his cruiser, the victim attempted to cover herself with a blanket. The defendant knocked on the door of the SUV. Asked what they were doing, the victim replied they were having sex. The defendant ordered the victim to get out of the car although she was covered only by a blanket, and to walk to the opposite side of his cruiser. He handcuffed Betancourt, who was completely naked, in the back of the SUV.
The defendant went to the opposite side of the cruiser where the victim was standing and ordered her to open the blanket that was covering her naked body, allegedly to check for weapons. She attempted to open and close the blanket quickly. However, the defendant stopped her from doing so with his hand and commented that she was "shaved." The defendant then put his fingers inside the victim's vagina. He asked her what she was willing to do to not get arrested. Specifically he asked her if she would be willing to have sex with a police officer. She said no. He asked her if that answer would change if he was not uniformed. She said no.
The defendant unzipped his pants and exposed his fully erect penis and told the victim to grab it. When she said no, he began to masturbate. He ejaculated on her leg and on the side of the blanket that was covering her. The victim wiped off her leg and the defendant zipped his pants. The defendant told her to go to the SUV and get dressed. While she was dressing outside the SUV, the defendant told her to drop the blanket to the ground and kick it backwards. He then put it in the trunk of his cruiser.
The defendant then took the handcuffs off Betancourt and told him to get dressed. He told the victim and Betancourt that he was going to allow them to leave with only a warning, but that they should not speak about what happened to anyone because it would be embarrassing for them, and they could get arrested. Neither the victim nor Betancourt reported the incident.
Two months later, the victim happened upon a friend, Officer Nathan Lafleche of the Worcester Police Department. She told him that the department had a "pervert" working for it and gave a physical description of the officer about whom she was talking, but gave no further details.
Based upon this conversation Lafleche had a conversation with the defendant when they next worked together. He asked the defendant what happened at Bancroft Tower and the defendant denied that anything out of the ordinary had happened. Lafleche then spoke with Sergeant Joe Ashe, the sector sergeant supervising the defendant. Ashe met with his supervisor, Lieutenant Jim Moore, and they decided to speak with the defendant.
It may be inferred from the victim's testimony that she described the defendant's ethnicity, and that that was the basis of Lefleche's conclusion that she was referring to the defendant. Although she did not say this in her testimony, the victim testified that Lafleche told her in response to her description, "He said there was only one officer --" Counsel cut her off there, but she then said that, because of this, Lafleche knew the officer to whom she was referring.
Ashe and Moore met with the defendant inside Moore's Worcester police department SUV in the parking lot of Boston Donut. Lieutenant Moore asked the defendant what happened at Bancroft Tower. The defendant said he observed a car with Connecticut plates with two people having sex inside. Ashe asked the defendant whether he requested an incident number for stopping the vehicle. The defendant replied "no." Given the fact that the defendant would have been outnumbered, Ashe asked the defendant whether he called for backup. The defendant replied "no." He asked why the defendant did not call for backup. The defendant replied, "I don't know." And in response to Moore suggesting that "nobody knew where he was that evening," the defendant replied, "that's right."
The defendant left the SUV, but returned five minutes later, without being asked to do so. He volunteered that he had handcuffed both individuals at Bancroft Tower because he allegedly feared for his safety. When asked why didn't request backup if he feared for his safety, he again replied "I don't know."
Discussion. The defendant's first argument is that an informal "investigation" may not form the basis for a formal criminal prosecution. The defendant complains that the process used by the police to identify him did not involve a proper criminal investigation or an independent identification procedure with the victim or Betancourt. This claim was not raised in this way below, and if we found error, we could reverse only if it created a substantial risk of a miscarriage of justice. Commonwealth v. Davis, 487 Mass. 448, 467 (2021). Regardless of the standard of review, however, the defendant cites no case in which a criminal prosecution has been barred because the defendant was accurately identified as the perpetrator through informal means. And, of course, as the defendant recognizes, regardless of the steps taken in the investigation, once the defendant had made his incriminating statements to Ashe and Moore, there was no need for any independent identification of the defendant.
Perhaps for this reason the defendant next argues that the defendant's superiors' informal discussion with him rendered his incriminating statements involuntary in violation of principles of due process and the Fifth Amendment privilege against self-incrimination. The defendant was not in custody, and he does not contend otherwise. Consequently, he has no claim under Miranda v. Arizona, 384 U.S. 436 (1966). Involuntary statements may nonetheless be inadmissible, however, his claim that his statements are involuntary because they were about job performance and whether he had followed proper police procedure is foreclosed by the decision of the Supreme Judicial Court in Commonwealth v. Harvey, 397 Mass. 351, 356 (1986) (facts that defendant was "obligat[ed] to answer questions regarding his duties as a police officer" and that there existed possibility of adverse consequence, including ultimately dismissal, for failure to cooperate with police department investigation in which he made inculpatory statements, did not demonstrate that defendant was "compelled" to incriminate himself). The statements were therefore admissible.
The defendant next argues that, because evidence of the informal investigation was admitted, Lefleche was allowed improperly to vouch for the credibility of the victim. Vouching occurs when an attorney or police officer 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 and thereby places "the imprimatur of official belief in the witness." See Commonwealth v. Ahart, 464 Mass. 437, 442 (2013) ; Commonwealth v. Wilson, 427 Mass. 336, 352 (1998).
In describing his own demeanor in the confrontation with the defendant, Lafleche testified that it was "kind of like an older brother to a younger brother," and that "at the end of the conversation I told him he better knock this -- excuse my French -- but knock this shit off or he'll lose his job." The defendant argues that this was vouching in that it implied that Lafleche believed the statements of the victim.
The defendant did not object until, after the prosecutor said "okay," Lafleche continued his testimony. The judge ruled, "the witness can testify as to the tone of what he was saying [to the defendant]." The defendant also claims error in Lafleche's testimony that, in that same confrontation, Lafleche said in response to the defendant telling him he didn't know what Lafleche was talking about, "please don't act stupid. Like, let's try to move on past this." That statement was unobjected to. The defendant argues further that Ashe's testimony, that Lafleche relayed to him a report of a "criminal act," corroborated Lafleche's belief.
We do not think that "[i]t is likely that the jury would have considered [Lafleche's] testimony as an endorsement of the victim's credibility." Commonwealth v. Orton, 58 Mass. App. Ct. 209, 211 (2003). Nonetheless, even if the claim of error was preserved, we do not think any error was prejudicial. The police witnesses were entitled to explain how they came to confront and question the defendant. See Commonwealth v. Cohen, 412 Mass. 375, 393 (1992), quoting McCormick on Evidence § 249, at 734 (E. Cleary ed., 3d ed. 1984) ("[A]n arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct"). Since Lafleche was the recipient of the victim's complaint, the first officer to confront the defendant, and the one who then reported the crime to Ashe, his belief in the credibility of the victim -- something not mentioned or alluded to by the prosecutor in closing -- likely would have been apparent to the jury in any event from the other, properly admitted evidence. There was also other, more direct evidence bearing on the credibility of the victim, and, in addition to the instruction that "[t]he fact that the defendant has been charged with a crime, or crimes, is absolutely no evidence of his guilt," both the prosecutor, in closing, and the judge, in the jury instructions, stated that the jurors were the sole judges of credibility.
The defendant argues next that trial counsel was ineffective in challenging the motives to lie of the victim, Betancourt, Lafleche, and Ashe. To be sure, counsel did not aggressively cross-examine the victim or Betancourt with their negative statements about the police, and there was evidence that Ashe had made racist comments about the defendant -- these will be discussed in more detail below -- calling him "a Pakistani" and "a Muslim" who did not understand "the American ways" (the defendant is in fact of Indian descent and Hindu). We may assume without deciding that the defendant has met the first prong of the Saferian test and that his trial counsel's performance fell measurably below that which might be expected from an ordinary fallible lawyer. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Nonetheless, given the defendant's admissions, the interlocking testimony of the victim and Betancourt, the fact that Betancourt's testimony was by its terms quite limited due to his distance from the defendant and the victim during the commission of the offense (which one would not expect from concocted testimony), and the fact that Betancourt and the victim were not in fact arrested, the defendant has not shown that he was deprived of a substantial ground of defense. See Sefarian, 366 Mass. at 96.
Of serious concern is evidence presented at the evidentiary hearing on the defendant's second motion for a new trial, of racial bias in the Worcester Police Department. Then-Sergeant John Lewis, who had served as the affirmative action and ethnic minority officer from 2005 to 2013, was the shift sergeant on duty on the night that Officer Lafleche confronted the defendant. He testified at the evidentiary hearing that the crime should have been reported to him. However, Lafleche chose to report the incident to Sergeant Ashe. Sergeant Lewis testified that Sergeant Ashe consistently made comments about the defendant that Sergeant Lewis found to be inappropriate. These included that the defendant was a "Pakistani" and a "Muslim," that Ashe didn't "know even how he became a policeman," and that he needed to be "retrained."
After Lafleche had reported his interaction with the defendant to Sergeant Ashe and Sergeant Ashe and Lieutenant Moore had confronted the defendant, Sergeant Lewis met with Officer Lafleche. Lewis asked Lafleche why Lafleche had not reported the incident to him, and Lafleche falsely responded that Lewis was not working that night. Lafleche stated that no one liked the defendant and that the defendant was "pompous."
Lewis responded that he didn't believe that the defendant had engaged in misconduct and that he, Lewis, would help the defendant file a discrimination complaint against Lafleche, Ashe, and Moore, if the allegations were not substantiated by a victim. That same night, the victim appeared at the Worcester Police Department for the first time.
This evidence, that Lafleche avoided a discrimination complaint only by the victim coming forward when she did, the defendant argues, would have supported cross-examination and an argument at trial that the allegations were trumped up by Lafleche in order to avoid that complaint.
To the extent that the defendant alleges he was improperly targeted and investigated as a result of racial bias, he raises a serious concern about the operation of the Worcester Police Department that should be addressed in an appropriate forum. The argument that the allegations were made by the victim and Betancourt in order to protect Lafleche, however, could have force only if there were a larger conspiracy involving the victim, Lafleche and Betancourt. Without at least the testimony of the victim about her relationship with Lafleche and the timing of her coming forward, the claim that this is what happened does not rise above the level of speculation, and so we do not think failure to raise it at trial deprived the defendant of a substantial ground of defense.
The defendant argues next that trial counsel was inadequately aggressive in cross-examining Betancourt and attributes this to the fact that counsel's firm had recently represented Betancourt for assaulting a police officer, up until the eve of the defendant's trial. At the evidentiary hearing on the defendant's second motion for a new trial, the evidence revealed that the following happened: The defendant hired Peter Ettenberg, Esq. to represent him in this case in 2014. Thereafter, Mr. Ettenberg's associate, Jaclyn Greenhalgh, Esq., was appointed to represent Betancourt in his assault on a police officer case. On or about April 15, 2015, the assistant district attorney prosecuting Betancourt informed Attorney Greenhalgh that her client was a witness against the defendant in this case. Since this was the first time she had been made aware of a potential conflict, Attorney Greenhalgh withdrew from her representation of Betancourt that same day. She testified that she had no memory of sharing any information from Betancourt's case with Attorney Ettenberg and that neither of them had any involvement in each other's case. Attorney Ettenberg similarly testified that he was not involved with Betancourt's case in any way, that he never spoke with Attorney Greenhalgh about that case, and that he did not change his strategy in the defendant's case in light of Attorney Greenhalgh's former representation of Betancourt. The judge found the testimony of both attorneys credible. In light of this, there was no actual conflict of interest at the time the defendant's trial began, and we conclude that there was no potential conflict of interest which prejudiced the defendant or deprived him of the possibility of a fair trial. See Commonwealth v. Griffin, 404 Mass. 372, 377 (1989).
The defendant's next claim involves attempted impeachment of the victim. In cross-examining Officer Lafleche about his initial conversation with the victim, defense counsel sought to introduce a prior inconsistent statement of the victim. The judge ruled that, in order to impeach the victim with the prior inconsistent statement, counsel was required to ask her about it rather than simply asking the third-party witness with whom she had engaged in the conversation.
The Commonwealth acknowledges that the defendant was in fact entitled to prove the prior inconsistent statement through another witness rather than by directly confronting the victim during her testimony. See Commonwealth v. Parent, 465 Mass. 395, 399-400 (2013). The Commonwealth argues, however, that it was not an abuse of discretion to limit this impeachment because the issue was collateral, and where a matter is collateral, such impeachment may be limited.
The judge did not limit this impeachment on the ground that it was collateral, rather he appears to have concluded incorrectly that a prior inconsistent statement could be used to impeach the witness only by confronting her directly with it. This is what the prosecutor argued. Defense counsel said that he would have to call the victim back to testify in light of the ruling. The judge said he would address that if that was what defense counsel wanted to do, but defense counsel did not request it.
Nonetheless, this is a preserved claim of error, and we review it to determine whether it was prejudicial. The defendant has not, however, explained exactly what statement of the victim he intended to use to impeach her, arguing only that by showing some inconsistency, he would have undermined her credibility. Without describing exactly what inconsistency trial counsel sought to exploit -- something absent from both the sidebar discussion at trial and from the defendant's brief before us -- the defendant cannot in this case meet his burden of showing prejudice. At trial defense counsel did suggest that the inconsistent statement was in Officer Lefleche's report. Perhaps defense counsel sought by asking Officer Lafleche what the victim had told him during this encounter to impeach the victim's statement that she had told Officer Lafleche that he "had a pervert working with him on the police force" and had provided him with a description of the perpetrator. Defense counsel may have wanted to contrast these relatively vague allegations with the more specific allegations Officer Lafleche wrote in his report and testified to at the defendant's disciplinary hearing. At the hearing, Lafleche testified that the victim asked him if he knew a "short Indian cop," and that, "to paraphrase [the victim] ... she was handcuffed, he was handcuffed.... The male companion that she was with was allowed to leave. And Officer Sharda ejaculated on a blanket while she was there." His report contains the same information, except it does not say the victim said she was handcuffed. While the inconsistencies might somewhat undermine the victim's credibility with respect to what she initially confided in Officer Lafleche, eliciting testimony from Lafleche that the victim had made these allegations during their first encounter may also have bolstered her credibility as to the underlying incident itself, as these statements in broad measure largely comport with what she testified to at trial regarding the sexual assault. Accordingly, we cannot say the defendant was prejudiced by their exclusion or that it might furnish grounds for reversal.
Neither Officer Lafleche's November 12, 2013 report or his statements at the July 7, 2014 disciplinary hearing were entered in evidence, but are before this court as exhibits provided by the defendant in his record appendix.
Next, the defendant has accurately identified one error in the prosecution's closing. The prosecutor said the victim described being caught having sex "with" a police officer and not "by" a police officer. But there was no objection, and this misstatement did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Alvarez, 480 Mass. 299, 310 n.3 (2018).
Finally, the defendant alleges that the closing was filled with improper vouching for the victim's credibility. There was no objection at trial, so any error would be reviewed for a substantial risk of a miscarriage of justice. See Alvarez, 480 Mass. at 310 n.3. Vouching occurs when 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. See Ahart, 464 Mass. at 442. This includes asserting that victims have "no reason to lie." Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). But this was not a case in which the prosecutor merely asserted the victim and Betancourt had no reason to lie. The prosecutor argued from the evidence that, where the defendant did not arrest them but let them go, the victim and Betancourt did not have the motive to lie that someone who was arrested might have. The prosecutor argued that fabricating an embarrassing situation in which she was caught by a police officer having sex was unlikely in the context of the casual conversation the victim initially had with Officer Lafleche. The prosecutor also asserted that if Betancourt had a motive to lie he would not have said only that all he could hear was the officer's walkie talkie rather than fabricating a more comprehensive story.
We see no error in these aspects of the closing.
Judgments affirmed.
Orders denying motions for a new trial affirmed.