Com. v. Hoppin

• Citation: 438 N.E.2d 820,387 Mass. 25
• Parties: COMMONWEALTH v. Allan B. HOPPIN.
• Decision Date: 02 August 1982
• Court: United States State Supreme Judicial Court of Massachusetts

Page 820

438 N.E.2d 820

387 Mass. 25

COMMONWEALTH v. Allan B. HOPPIN.

Supreme Judicial Court of Massachusetts Middlesex.

Argued April 7, 1982.

Decided Aug. 2, 1982.

William J. Leahy, Boston, for defendant.

Robert M. Raciti, Asst. Dist. Atty., for Commonwealth.

Before HENNESSEY, C. J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

The defendant appeals from convictions of rape, assault and battery by means of a dangerous weapon, kidnapping, and receipt of stolen goods. ¹ His principal contention is that the prosecutor committed reversible error when he employed a length of rawhide, not in evidence and without connection to the case, as a dramatic prop during his closing argument to the jury. The defendant also argues that the judge erred in denying his motion to sever. The Appeals Court affirmed the convictions. 13 Mass.App. 36, 429 N.E.2d 1037 (1982). We granted the defendant's application for further appellate review. We conclude that, in the circumstances, the display of rawhide was a serious prosecutorial error and requires reversal of the convictions. ²

The defendant was indicted on eight charges: rape, assault and battery by means of a dangerous weapon, kidnapping, commission of an unnatural act, illegal possession of a firearm, possession of ammunition, possession of marihuana, and receipt of stolen goods. The first four of these charges arose from an incident on July 4, 1979, involving the defendant and a female acquaintance (the victim). The latter four charges relate to items seized from the defendant's trailer on July 24, 1979, by police investigating the July 4 incident. The defendant's motion for separate trials of these two groups of indictments was denied, and the eight indictments were tried together before a jury. The jury returned verdicts of guilty on each of the indictments.

The principal witness for the Commonwealth was the victim. We summarize her testimony. Prior to July 4, 1979, she and the defendant had been friends, but had not been lovers. She had frequently complained to the defendant of her former boyfriend "Jake," who had abused and defrauded her. She wished Jake dead, and to her surprise, the defendant offered to carry out her wish. The victim stated that she did not accept this offer.

On July 4, the defendant contacted the victim at her place of work, and asked to talk. As a result the two met that evening and drove to the trailer in which the defendant lived. There, the defendant told the victim that he had shot and killed her former boyfriend and two companions, and showed her a pouch that he implied contained empty shells. On previous occasions, she had seen in the defendant's possession a handgun, which he had described as "hot." When the defendant told her of the murders, she was "kind of shocked," but uncertain whether he was telling the truth. On cross-examination, she testified that she had since learned that her former boyfriend was still alive, but stated that she had not known this on July 4, the night of the conversation and alleged rape.

According to the victim, the defendant, after describing the murders, stated that he would "have" her in payment for his services. After some discussion, in which the victim refused to have sexual intercourse with the defendant, he took her forcibly to the rear of the trailer. He tied her hands with a "leather thong," removed her clothes, struck her, held a knife or sharp object to her throat, and forced her to perform sexual acts.

Eventually, the defendant untied the victim, placed a blanket over her, and fell asleep. The victim "lost consciousness or awareness" for some time, then came to, dressed, and left the trailer in search of a telephone. A police officer stopped to ask if she was all right, and she responded that she was. She told a second police officer, who gave her a ride to a telephone, that she had been in a fight with a friend. She explained at trial that she had told this story in order to avoid questions.

The victim then telephoned an acquaintance, and told him that she had been raped. The next day, July 5, she consulted a counseling service and a doctor. On July 24, she contacted the police.

The acquaintance whom the victim had telephoned on the night of the incident testified that the victim had told him of the rape, and that she had appeared bruised and beaten. Another friend and a social worker, both of whom had spoken with the victim on July 5, gave similar testimony. A doctor who had treated the victim on July 5 recalled bruises, cuts and marks on her wrists. He stated that the victim had told him that she had been tied, beaten and raped, and that the marks on her wrists were "rope marks." In the doctor's opinion, her injuries were consistent with this account.

Two police officers testified that on July 24, acting on information from the victim, they went to the defendant's trailer to arrest him. Although they had no warrant, the defendant cooperated with them and invited them into the trailer. There they found and seized a knife, a gun, ammunition, and marihuana. Apparently, no leather strap was found. The victim identified the gun as the weapon the defendant had referred to as "hot." An employee of a sporting goods store testified that the gun had been stolen from his store in 1978.

The sole defense witness was the owner of a storage company, who had formerly employed both the victim and the defendant. He testified that he had overheard the victim asking the defendant to "blow away" her former boyfriend.

1. The Prosecutor's Closing Argument.

At the close of the evidence, the judge held a bench conference to consider the proper scope of closing arguments. The prosecutor did not mention the use of demonstrative props, and the judge foresaw no problems in the Commonwealth's proposed arguments. See Commonwealth v. Earltop, 372 Mass. 199, 206-207, 361 N.E.2d 220 (1977) (Hennessey, C. J., concurring). Before the jury, the defendant contended that the victim had wished the defendant to murder her former boyfriend; that she had learned that his claim of murder was false; that this had angered her and provoked a fight; and that she later had fabricated her account of rape. The prosecution argued that the defendant had related the story of murder in order to win the victim's sexual favor; that this ploy had failed; and that the defendant had then resorted to force to accomplish his objective.

During his closing argument, the prosecutor employed what the Commonwealth now refers to as "oratorical prop[s]." Most important, he wrapped around his hand a length of rawhide, one quarter inch thick. Neither this rawhide nor any like it had been introduced in evidence. After holding the rawhide for thirteen minutes, the prosecutor threw it down on his desk. He later picked it up again, then returned it to his desk where it remained, in the view of the jury, for the rest of his closing argument. ³

Early in the prosecutor's argument, the defendant attempted to object, but the judge, who had not seen the rawhide from his position behind the bench, overruled the objection. ⁴ At the close of the arguments, and after the jury had been excused, the defendant explained the problem to the judge and moved for a mistrial. The judge took the motion under advisement. The following day, the judge denied the motion, and attempted instead to counteract the prosecutor's error through curative instructions. He told the jury that legitimate argument was limited to the fair inferences from evidence introduced at trial, and instructed them specifically that the rawhide displayed by the prosecutor was not evidence and must be disregarded. ⁵

The prosecutor's display of rawhide was clearly improper. Closing argument must be confined to the evidence and the fair inferences from the evidence. Commonwealth v. Hoffer, 375 Mass. 369, 378, 377 N.E.2d 685 (1978). Commonwealth v. Earltop, 372 Mass. 199, 205, 361 N.E.2d 220 (1977) (Hennessey, C. J., concurring). Counsel may not refer to or suggest their knowledge of matters not in evidence. E.g., Commonwealth v. Burke, 373 Mass. 569, 574-577, 369 N.E.2d 451 (1977); Commonwealth v. Borodine, 371 Mass. 1, 10, 353 N.E.2d 649 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977). Similarly, counsel may not display objects that have not been admitted in evidence. See State v. Scarlett, 118 N.H. 904, 905-906, 395 A.2d 1244 (1978); Commonwealth v. Glover, 446 Pa. 492, 499-502, 286 A.2d 349 (1972); ABA Standards for Criminal Justice, The Prosecution Function §§ 3-5.6, 3-5.9 (2d ed. 1980).

In the circumstances, the prosecutor's display was highly prejudicial to the defendant, and compels us to reverse his convictions. The length of rawhide fitted the victim's description of a "leather thong," with which the defendant had bound her wrists to facilitate rape. The jury, observing the rawhide throughout the prosecutor's summation, could easily have inferred that it was in fact the same leather thong. Two references by the prosecutor, in the course of his argument, to the victim's having been tied with "rawhide," made the connection even more likely.

Viewed in context, the rawhide was apt to stir the jury's emotions. The victim had described the leather thong as an implement of rape, and a source of pain. Thus the rawhide evoked an image of sexual violence. Moreover, a leather thong, if one had been found, would have added much to the Commonwealth's case. The outcome of the trial turned primarily on the credibility of the victim. The discovery of a leather strap, matching her description, would have corroborated her account of the incident and discredited the defendant's theory of the case. See Commonwealth v. Redmond, 370 Mass. 591, 597, 351 N.E.2d 501 (1976).

The Commonwealth argues that the prejudicial impact of the rawhide was alleviated by the judge's curative instructions. Impropriety in closing argument can often be counteracted by...