Com. v. Beaudry

• Decision Date: 20 December 2005
• Citation: 839 N.E.2d 298,445 Mass. 577
• Parties: COMMONWEALTH v. John D. BEAUDRY, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

839 N.E.2d 298

445 Mass. 577

COMMONWEALTH v. John D. BEAUDRY, Jr.

Supreme Judicial Court of Massachusetts,

Hampshire.

Argued November 9, 2005.

Decided December 20, 2005.

COPYRIGHT MATERIAL OMITTED

Jane Larmon White, Committee for Public Counsel Services, Boston, for the defendant.

Judith Ellen Pietras, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

COWIN, J.

Once again we consider a challenge to a prosecutor's closing argument. The defendant was indicted for sexual offenses against his daughter: three counts of rape of a child; four counts of indecent assault and battery on a child under the age of fourteen years; and one count of open and gross lewdness. The indecent assault and battery charges were characterized "second or subsequent." A jury convicted the defendant of all the substantive charges, and he then pleaded guilty to the second or subsequent portions. The defendant appealed and the Appeals Court affirmed the judgments. Commonwealth v. Beaudry, 63 Mass.App.Ct. 488, 826 N.E.2d 782 (2005). We granted the defendant's application for further appellate review limited to the propriety of the closing argument. Because we conclude that the argument was improper and that it was prejudicial, we reverse the judgments. We proceed to recite the facts the jury could have found in some detail in order to explain our conclusion that the improper closing argument was sufficiently prejudicial that the convictions must be reversed.

1. Facts. The child, Cathy, who is the subject of the allegations, is the defendant's daughter. The defendant is the former husband of Cathy's mother, Deborah Foster.¹ The couple separated in 1990, when Cathy was about one year old. The defendant moved to Massachusetts and Foster and the child remained in Florida where the family had been living. The defendant had little or no contact with Cathy for the next eight years. During the summer of 1998, Foster contacted the defendant to inform him that she could no longer care for the nine year old child because of her violent outbursts and assaultive behavior. The defendant agreed to take custody of Cathy when Foster told him that if he did not do so, she would have the child placed in a foster home or an institution. In Massachusetts, Cathy first lived with her paternal grandmother but she and her grandmother soon moved into an apartment with the defendant. Cathy was homesick, had difficulty socializing in Massachusetts, and repeatedly asked her mother if she could return to Florida. Although Cathy expressed a desire to visit Florida for Christmas, she was not permitted to do so.

Foster received a telephone call in March, 1999, from Cathy's grandmother, recounting the child's increasingly disruptive behavior. Cathy joined the telephone conversation, and when she expressed hopes of a Florida visit, she was again rebuffed; her mother told her that a visit was not possible until the end of the school year. Immediately thereafter, Cathy told her mother that her father had sexually abused her.

After the abuse allegations, Cathy was sent home to Florida, where her mental condition declined and she was eventually institutionalized for about one week. There was testimony that relatives, including her mother, said that Cathy had recanted the allegations at different times.

Although not before the jury, an investigating officer testified at the grand jury concerning the defendant's abuse of an older daughter, Cathy's sister. This testimony is relevant to our consideration of the prosecutor's closing argument.

2. Closing argument. The defendant maintains that the prosecutor's closing argument was improper in two respects. He claims that the prosecutor suggested, without evidentiary support, that the defendant's sexual abuse of Cathy was the only source of the child's age-inappropriate sexual knowledge. The defendant's second contention is that the prosecutor improperly asked the jurors to credit the child's testimony merely because she testified in court, and to discredit the defendant's testimony because he had a stake in the outcome of the trial (and thus a motive to lie). The Appeals Court determined that the prosecutor's comments regarding Cathy's sexual knowledge did not amount to reversible error because the Commonwealth had established a "minimally sufficient" factual basis to justify arguments about sexual innocence. Commonwealth v. Beaudry, supra at 496-497, 826 N.E.2d 782. The Appeals Court also concluded that the prosecutor's statements asking the jury to believe Cathy, although improper, were offset by an emphatic curative instruction. Id. at 501-502, 826 N.E.2d 782. Finally, the Appeals Court held that the prosecutor's statements explaining why the defendant should not be believed were not improper. Id. at 501, 826 N.E.2d 782.

a. Sexual innocence. In closing argument, the prosecutor stated:

"The other thing I asked you to consider was how would a nine year old child know about these numerous and very sexual acts that she testified to?

"Does the average nine year old child know about a man licking a female's vagina? Does the average nine year old little girl know about a man putting his penis in someone's mouth? Does the average nine year old child know about a man putting his penis, or trying to put his penis in the buttocks of someone else, putting his fingers in the vagina of a female? Or does the average nine year old child know that when a man grabs his penis and moves his hand up and down that the penis rises and white stuff comes out of it?

"If a child has not experienced these things, how do they have [sic] all that sexual knowledge? [Cathy] told you nothing like this had ever happened to her before. Add [sic] not only did she tell you what her father did, she gave you details....

"That is something a nine year old kid makes up? If a child doesn't experience sexual things, how do they make up that kind of detail?"

The defendant objected at the end of the closing on the ground that the argument was inappropriate because there was no evidence what a nine year old might know and because "asking the jury to speculate regarding that is improper." We agree.

"Prosecutors must limit the scope of their arguments to facts in evidence and inferences that may be reasonably drawn from the evidence." Commonwealth v. Coren, 437 Mass. 723, 730, 774 N.E.2d 623 (2002), citing Commonwealth v. Good, 409 Mass. 612, 623, 568 N.E.2d 1127 (1991). A prosecutor may not use "closing argument to argue or suggest facts not previously introduced in evidence." Commonwealth v. Storey, 378 Mass. 312, 324, 391 N.E.2d 898 (1979), cert. denied, 446 U.S. 955, 100 S.Ct. 2924, 64 L.Ed.2d 813 (1980).

Here, the prosecutor exceeded the scope of proper argument by referring to facts not supported by evidence and not within a juror's common knowledge and suggesting an inference that could not reasonably be drawn from the evidence. The inference that the prosecutor suggested was that the complainant's testimony was true because "it was not plausible that a child would possess knowledge of [the] sexual [acts alleged] unless she had acquired it from the acts with which the defendant was charged." Commonwealth v. Scheffer, 43 Mass.App.Ct. 398, 401, 683 N.E.2d 1043 (1997). However, there was no factual basis in the trial from which to argue that the child demonstrated knowledge of sexual mechanics or terminology not ordinarily possessed by children of her age. Although Cathy was twelve years and ten months old at the time of trial (nine years and nine months at the time of the allegations), there was no evidence of the sexual knowledge of an average child nor anything to indicate that Cathy was a typical child of that age. Cf. Commonwealth v. Lamrini, 392 Mass. 427, 433-435, 467 N.E.2d 95 (1984) (improper to argue robbery as motive for homicide, where no evidence to support such argument).

The Commonwealth claims that, at age nine years, Cathy had in fact "displayed a sophisticated level of knowledge about sexual conduct that could only have been learned through her experience with her father," and that the interviewing police officer's recitation of her initial complaint to him "established that her knowledge of sexual matters was age inappropriate." In support of this conclusion, the Commonwealth contends that there is an assumption "in our society that young children are not aware of sexual acts and terminology." Nothing is before us to indicate whether such an assumption, perhaps valid at one time, remains valid today. Regardless of the accuracy of any such assumption, the parties may not utilize it as the basis for argument without evidence to support the argument.

The Commonwealth argues that Commonwealth v. Ruffen, 399 Mass. 811, 814, 507 N.E.2d 684 (1987), implicitly acknowledges that young children are not expected to know about sexual activities and the physiology of adult genitalia and thus is authority for its argument. But the Commonwealth reads too much into the Ruffen holding. In that case we stated: "If a defendant challenges the reliability of a child's testimony about sexual abuse, it is unfair to deprive him of the right to show that the child had personal knowledge of sexual acts and terminology." Id. at 815, 507 N.E.2d 684. Accordingly, because the defendant there had a reasonable suspicion and a good faith basis for the inquiry, he "should have been permitted a voir dire examination of the victim's mother and of the victim to determine whether the victim had been sexually abused in the past." Id. Our reasoning for so holding was that sexual abuse of the child in the past in a manner similar to the abuse charged would be relevant and admissible at trial to show the child's knowledge about sexual matters. Id. We explained that, although evidence of the victim's sexual conduct is generally inadmissible, see G.L. c. 233, § 21B (rape shield statute), "the Constitut...