Com. v. Mosby

• Decision Date: 12 December 1980
• Parties: COMMONWEALTH v. Charles MOSBY.
• Court: Appeals Court of Massachusetts

Page 754

413 N.E.2d 754

11 Mass.App.Ct. 1

COMMONWEALTH v. Charles MOSBY.

Appeals Court of Massachusetts, Suffolk.

Argued Sept. 10, 1980.

Decided Dec. 12, 1980.

Brownlow M. Speer, Boston, for defendant.

Robert L. Cooperstein, Asst. Dist. Atty. (M. Catherine Huddleson, Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

Before BROWN, DREBEN and KASS, JJ.

BROWN, Justice.

The defendant appeals from his convictions by a jury in the Superior Court of breaking and entering a building in the daytime with intent to commit rape and larceny (G.L. c. 266, § 17), and of two counts of rape (as newly defined in G.L. c. 265, § 22, as appearing in St. 1974, c. 474, § 1).

The defendant raises five claims of error. He argues (1) that the prosecutor's reference in closing argument, to an alleged silence on the part of the defendant at the time he was arrested and confronted with the complainant, was improper; (2) that the prosecutor's additional comment, in closing argument, to the effect that once the complainant had recovered her stereo set, she could have "dropped the complaint if she was not telling the truth" about the rape, was also improper; (3) that the trial judge erred in excluding certain testimony under the "rape shield law," G.L. c. 233, § 21B; (4) that the judge's criticism of the defendant's trial counsel prejudiced the defendant's position in the eyes of the jury; and (5) that the evidence was insufficient to support a conviction on any of the offenses charged.

We agree with the defendant as to his first argument and hold that the prosecutor acted improperly in referring to the defendant's alleged silence at the time of his arrest and confrontation. Accordingly, we reverse the judgments of conviction and remand for a new trial. ¹

At trial, the prosecution's case consisted mainly of testimony by the complainant and the two police officers who arrested the defendant. As brought out in their testimony, the basic facts of the incident were as follows.

At the time of the incident, the complainant resided with her four children in an apartment on the third floor of a building at the Bromley Heath housing project in Jamaica Plain. She had lived there for about five years and knew most of the people in the building.

The complainant knew the defendant because he had previously come to her apartment to visit her sister, who had lived with the complainant until approximately a year before the incident. The complainant testified that the defendant had never come to the apartment since her sister had left, but that she had seen him around the neighborhood since that time.

On the afternoon of Saturday, March 10, 1979, the complainant was at home with her children. She testified that no one else had been there that day. At about 3:30 or 4:00 P.M., she heard a knock at the door. She did not know who was there but she went to the door and unlocked it. When the person outside pushed the door open, she saw that it was the defendant. He forced his way into the living room, put his arm around her throat from behind, and began choking her. He warned her not to scream. The defendant held her in that position for some time.

The complainant's children were in the bedroom watching television, and the defendant told her to bring the children and the television out into the living room. He released her, and she did so.

The defendant then led the complainant into the bedroom. He told her to take off her pants and underpants, which she did. The complainant testified that the defendant then "put his mouth to ... my vagina," and later "inserted his penis in my vagina." Thereafter, the defendant came out of the bedroom, took the complainant's stereo set from the living room, and left the apartment with it.

The complainant then put her clothes back on and went down to the second floor apartment of Ruby Avinger, a close friend of hers at that time. She told Avinger and her ten-year-old daughter Natalie what had happened, and Avinger called the police. The complainant and Avinger then went downstairs to try to find the defendant. On the stairs they ran into Milton Boyd, another neighbor, and had a brief conversation with him. They then proceeded toward another building in the housing project, where they believed the defendant was living.

At that point, two police officers arrived and the complainant told them what had happened and where they were going. The officers then proceeded to an apartment in a nearby building. There they found the defendant. Both officers drew their service revolvers. One of them instructed the defendant to put his hands on the wall of the entryway of the apartment and then patted him down for weapons. In the apartment the police found a stereo matching the description the complainant had given them.

The police brought the defendant and the stereo outside, where the complainant and Boyd were waiting. The complainant identified the defendant and the stereo. The police then placed the defendant in the cruiser and took him to the station. The complainant was subsequently taken to a hospital for examination.

The defendant's case consisted of testimony by Avinger, her daughter Natalie, and Boyd. Their testimony contradicted the complainant's story in the following respects.

Natalie testified that she had seen the defendant in the complainant's apartment at least once since the complainant's sister had moved out. She testified also that on the afternoon in question she went to the complainant's apartment to tell her she had a telephone call in the Avingers' apartment. When the complainant opened the door, Natalie saw the defendant sitting on the couch. After receiving the message, the complainant sat back down with him briefly before coming downstairs.

Natalie and her mother both testified that later that afternoon the complainant had come to their apartment a second time saying that she had been raped, and that at that time she was wearing a "black nightgown" under a raincoat. This testimony regarding the complainant's attire was consistent with that given by a nurse who interviewed the complainant at the hospital following the incident.

Boyd testified that he knew both the complainant and the defendant, and that sometime that afternoon (it is unclear when) he went to the complainant's apartment. He testified that the defendant answered the door for him and that they had a brief conversation. He did not see the complainant there at that time.

In addition, defense counsel made a number of attempts during the examination of several witnesses to bring out further facts regarding the relationships between the complainant and the defendant and between the complainant and Boyd. These examinations, and other facts, are discussed as relevant infra.

1. Prosecutor's comment on the defendant's "silence."

At trial, the two arresting officers testified that when they found the defendant, they brought him before the complainant, who identified him, saying "That's him. That's the man who raped me." On cross-examination, the defendant brought out the fact that after the officers "took Mr. Mosby into custody," he made certain statements. One was something to the effect of, "You've got the wrong guy." Another was, "She's full of shit. I have known her for eighteen months." On redirect, however, one of the officers testified that the defendant did not make these statements at the time when the complainant identified him, but only after he had been placed in the cruiser, which was ten or fifteen minutes after the time he was first apprehended.

Thereafter, the defendant attempted to establish that he had not been silent at the time of the confrontation but rather had made some response in the face of the complainant's accusations. Defense counsel asked Avinger, "Did you hear (defendant) say anything when he was arrested?" The prosecutor immediately objected and the question was excluded. The defendant later asked Boyd the same question. Boyd replied in the affirmative, but the follow up question ("And what did he say?") was excluded on objection by the prosecutor.

In closing argument, the prosecutor drew the jury's attention to the officer's testimony regarding the defendant's statements, and reminded the jury of the testimony as to the time they were made. ²

The defendant urges that the prosecutor's argument was grossly improper. We agree. It is quite clear from the transcript that the prosecutor, in this portion of his argument, was inviting the jury to draw the inferences (1) that the defendant was, in fact, silent in the face of the complainant's accusations, and (2) that such silence was evidence of his guilt and his consciousness thereof.

a. The argument made here by the Commonwealth assumes, as its premise, the fact that the defendant stood mute when confronted with the accusations of the complainant. In fact, the only testimony on this point is to the contrary. As set out above, Boyd testified that he heard the defendant say something at the time of the confrontation, although he was not allowed to go on to testify as to what the defendant actually said.

"It is, of course, beyond dispute that a prosecutor commits error when he uses closing argument to argue or suggest facts not previously introduced in evidence." Commonwealth v. Storey, 378 Mass. ---, --- ^a, 391 N.E.2d 898 (1979). See also S.J.C. Rule 3:22A, PF 13(a), 14, --- Mass. --- (1979) (effective March 1, 1979). Given Boyd's testimony that the defendant did say something at the time of the confrontation, the prosecutor's argument that the defendant was silent is unsupported by the record and amounts to a clear misstatement of the evidence. See Commonwealth v. Nordstrom, 364 Mass. 310, 315-316, 303 N.E.2d 711 (1973).

b. Even if the testimony fully supported the prosecutor's assertion that the defendant was indeed silent in the face of the complainant's accusations, the prosecutor could not properly have argued to the jury that...