Com. v. Gaeten

• Decision Date: 27 April 1983
• Parties: COMMONWEALTH v. Alexandre v. GAETEN.
• Court: Appeals Court of Massachusetts

Page 1102

446 N.E.2d 1102

15 Mass.App.Ct. 524

COMMONWEALTH v. Alexandre v. GAETEN.

Appeals Court of Massachusetts Middlesex.

Argued Oct. 12, 1982.

Decided March 29, 1983.

Further Appellate Review Denied April 27, 1983.

Rikki J. Klieman, Cambridge (Max W. Beck, Boston, with her), for defendant.

Marian T. Ryan, Asst. Dist. Atty., for the Commonwealth.

Before GRANT, ROSE and SMITH, JJ.

ROSE, Justice.

The defendant appeals from his rape conviction in the Superior Court. He raises a number of issues on appeal. He seeks reversal on the ground that improper statements by the prosecutor in her closing argument denied him a fair trial. He also claims that reversible error occurred in the jury instructions on reasonable doubt and consciousness of guilt, the exclusion of certain evidence, the judge's refusal to ask certain questions of the venire on voir dire, the failure to provide effective assistance of counsel, and the judge's refusal to poll the jury after the verdict. We affirm the conviction.

We shall recount facts only as necessary for a determination of the issues raised by the defendant.

1. Improper closing argument. The defendant argues that the prosecutor's closing argument was improper because she misstated the evidence and expressed her personal belief as to the credibility of the witnesses and the guilt of the defendant. The bounds of proper argument are well established. "Counsel may argue as to the evidence and the fair inferences from the evidence." Commonwealth v. Earltop, 372 Mass. 199, 205, 361 N.E.2d 220 (1977) (Hennessey, C.J., concurring). Commonwealth v. Burke, 373 Mass. 569, 574-575, 369 N.E.2d 451 (1977). See also Commonwealth v. Ferreira, 381 Mass. 306, ---, 409 N.E.2d 188 (1980). Where, as here, there has been no objection to the allegedly improper remarks, we review the prosecutor's summation in its entirety to ascertain whether any error was committed, and, if so, whether it has created a substantial risk of a miscarriage of justice. Commonwealth v. Fitzgerald, 376 Mass. 402, 416, 381 N.E.2d 123 (1978), and cases cited. Commonwealth v. Bradshaw, 385 Mass. 244, 271, 431 N.E.2d 880 (1982).

The defendant points to several instances where the prosecutor used the phrase "I think." ¹ While the use of this phrase is unfortunate, it is not always an expression of personal belief. See Commonwealth v. Stone, 366 Mass. 506, 516 n. 4, 320 N.E.2d 888 (1974); Commonwealth v. Snyder, --- Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1980) 1776, 1777, 409 N.E.2d 814. See also Commonwealth v. Ferreira, 381 Mass. 306, ---, 409 N.E.2d 188 (1980). Contrast Commonwealth v. Daigle, 379 Mass. 541, 550, 399 N.E.2d 1063 (1980), where the court disapproved the prosecutor's statement "I think ... that this man is guilty" but, in the circumstances there considered, did not find reversible error. It is clear from the prosecutor's argument as a whole that she was using this phrase rhetorically to point out possible inferences from the evidence. Counsel was free to argue the matters introduced by "I think." The jury could not have interpreted this phrase to express the prosecutor's personal opinion or belief. In such a circumstance, the precise form of the argument should not govern. See Commonwealth v. Nordstrom, 364 Mass. 310, 315, 303 N.E.2d 711 (1973).

The defendant also argues that the prosecutor's frequent use of the phrase "I suggest," instances of which need not be enumerated here, was improper. This phrase is a reasonable way of placing inferences favorable to the Commonwealth's case before the jury. See Commonwealth v. Drayton, 386 Mass. 39, 52-53, 434 N.E.2d 997 (1982). Neither on its face nor in the particular contexts in which it was used did the phrase convey the prosecutor's personal belief or opinion. The statements preceded by "I suggest" were based on the evidence or fair inferences from it. Contrast Commonwealth v. Hogan, --- Mass.App. ---, --- - ---, Mass.App.Ct.Adv.Sh. (1981) 1885, 1890-1891, 428 N.E.2d 314.

The prosecutor's remark about the police officer's testimony did not misstate the evidence. ² See Commonwealth v. Fitzgerald, 376 Mass. 402, 417, 381 N.E.2d 123 (1978); Commonwealth v. Smith, 387 Mass. 900, 907, 444 N.E.2d 374 (1983). The police officer testified that the defendant, after his arrest, volunteered that he and the victim had not had intercourse that night. On cross-examination, the officer admitted that those exact words did not appear in his report made that same night. The defendant denied ever having made such a statement. When the prosecutor's statement is read in the context of both closing arguments, it is clear that the prosecutor was not denying the absence from the police report of defendant's volunteered statement. Rather, the prosecutor was implying that what the police officer did write in his report (i.e., that the defendant and the victim had spent the evening together talking) was equivalent in the circumstances to writing down the defendant's statement that there had been no intercourse. That was proper argument.

The defendant argues that another of the prosecutor's statements, reprinted in the margin, misstated the evidence concerning threats of force by the defendant. ³ At trial, the victim testified that she told the defendant she could not have intercourse with him because she was menstruating. (In fact, the victim was not menstruating but was wearing a tampon because of a vaginal discharge.) The prosecutor's statement about the tampon is based on the following testimony by the victim:

"[He] keep on, you know, taking my things off and I told him that he wouldn't take my clothes off. Then he told me that if I didn't take it off he would take it off. And I told him that I couldn't have sexual intercourse because I am--he said to take it off .... [H]e told me if I didn't take my clothes off he will take it off. He continued to touch me and tried to get it off. And I told him that I will take it off myself."

By assuming that "it" referred to the victim's tampon and not to her clothing, the prosecutor may have stretched the testimony to its limit. But, in view of the victim's difficulty with the English language (which led her to confuse "off" and "out" at other points in her testimony) and her apparent reluctance to testify about some graphic details of the incident, we cannot say that the prosecutor's statement was not a fair inference from the evidence. See Commonwealth v. Downey, --- Mass.App. ---, --- - ---, Mass.App.Ct.Adv.Sh. (1981) 2027, 2033-2034, 429 N.E.2d 41; Commonwealth v. Moure, 15 Mass.App. 924, 925, 443 N.E.2d 1366 (1983). Even if the statement were an impermissible inference, we would find no substantial risk of a miscarriage of justice from this isolated remark in view of the judge's curative instructions that "[c]ertainly the closing arguments of counsel are not evidence in this case," and that "I cannot suggest to you what the facts are in the case ...." Commonwealth v. DeChristoforo, 360 Mass. 531, 537-538, 277 N.E.2d 100 (1971). Commonwealth v. Dougan, 377 Mass. 303, 311-312, 386 N.E.2d 1 (1979). This is not a case where the prosecutor "repeatedly and deliberately sailed unnecessarily close to the wind." Commonwealth v. Redmond, 370 Mass. 591, 597, 351 N.E.2d 501 (1976). Compare Commonwealth v. Mosley, 6 Mass.App. 451, 453, 377 N.E.2d 435 (1978), with Commonwealth v. Burke, 373 Mass. 569, 576-577, 369 N.E.2d 451 (1977), and Commonwealth v. Smith, 387 Mass. at 906-912, 444 N.E.2d 374 (1983).

2. Adequacy of jury instructions. Testimony concerning the defendant's volunteered statement on the night of his arrest that he had no intercourse with the victim warranted an instruction on consciousness of guilt. The defendant argues that this instruction, reproduced in the margin, ⁴ was erroneous in that it imposed a testimonial burden on the defendant and implied that the judge did not believe him. The defendant also claims that this instruction lowered the Commonwealth's burden of proof. Although the defendant objected at trial to the consciousness of guilt instruction on the ground that there was insufficient evidence to warrant it, no specific objection was made to the portion that the defendant now claims is erroneous. Thus, we review only to ascertain whether this case presents a "substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967).

We do not agree that this statement could be interpreted by the jury to impose an obligation to testify on the defendant. The remark that "the best refuge ... is always the truth" is couched in a sentence which tends to excuse and explain the defendant's behavior even if the jury chose to believe that he made a false statement to the police officer. Moreover, the phrase "resort to something" could not lead the jury to believe that the judge doubted the defendant's credibility. The judge's careful and repeated use of the word "might" eliminated any possibility that the jury would believe that, in the judge's opinion, this particular defendant had "resort[ed] to something." We note that the judge followed this portion of the charge with a disclaimer of any personal conviction. "That isn't to say that there isn't consciousness of guilt evidence, it's up to you to determine whether that exists in this trial or not."

There is no merit in the defendant's contention that the charge lowered the Commonwealth's burden of proof because it did not require the Commonwealth to prove beyond a reasonable doubt that the defendant lied to the police officer before the jury could infer consciousness of guilt. The judge prefaced this instruction with the statement that "lying with reference to material facts ... can be considered as consciousness of guilt if in fact that evidence has been established to you beyond a reasonable doubt." (emphasis supplied). ⁵

The defendant argues that the jury instruction defining evidence effectively diminished the...