Com. v. Pearce, 95-P-326

• Decision Date: 07 July 1997
• Docket Number: No. 95-P-326,95-P-326
• Citation: 43 Mass.App.Ct. 78,681 N.E.2d 296
• Parties: COMMONWEALTH v. Ian George PEARCE.
• Court: Appeals Court of Massachusetts

Page 296

681 N.E.2d 296

43 Mass.App.Ct. 78

COMMONWEALTH v. Ian George PEARCE.

No. 95-P-326.

Appeals Court of Massachusetts,

Suffolk.

Argued May 6, 1996.

Decided July 7, 1997.

Linda M. Poulos, Assistant District Attorney, for the Commonwealth.

Lissa C. McKinney, Brighton (Dana A. Curhan, Boston, with her) for the defendant.

Before BROWN, PERRETTA and FLANNERY, JJ.

FLANNERY, Justice.

The defendant was convicted on so much of an indictment charging forcible rape of a child under the age of sixteen years, G.L. c. 265, § 22A, as charged rape of a child under that age. G.L. c. 265, § 23. On appeal, he alleges that the trial judge erred in: (1) instructing the jury on a lesser included offense; (2) denying his motion for a mistrial on the basis of improper closing argument by the prosecutor; (3) denying his request for individual voir dire of the jury venire; and (4) limiting his cross-examination of the complainant. We reverse.

The Commonwealth's evidence at trial was to the following effect.

The defendant, who had been engaged to marry the complainant's sister, telephoned the complainant's mother on New Year's Eve to offer to take the complainant and her friends out for the evening. The mother assented. The defendant and complainant had been on similar outings before without incident. At the time, the complainant was twelve years old.

The defendant arrived in his automobile, and the two set off for an amusement arcade in the hope of finding some of the complainant's friends. When they arrived, the arcade was closed. They drove on to another, similar establishment with the same result.

The defendant then drove back to the complainant's home and parked in front. As they sat in the car, the defendant suggested that they either return to his home or continue to drive around. She agreed to continue driving but told the defendant that she had to be back by midnight.

After a brief stop at the home of one of the complainant's friends (the friend was out for the evening), the defendant drove to his apartment. Once there, the defendant led the complainant to his bedroom where she sat down to watch television. The defendant left the room.

When the defendant returned, he grabbed the complainant and pulled her onto the bed. While she cried, and urged him to stop, the defendant removed her underclothes and they engaged in sexual intercourse. She testified that after having intercourse, she used the defendant's bathroom to wash herself.

The defendant then drove her back to her house. During the ride, the defendant asked "[i]f your mother calls me, what should I say?" The complainant told him "don't worry about it."

Once home, the complainant said nothing to her mother about the rape, but instead went straight to the bathroom and washed. About two weeks later, realizing that she was pregnant, she told her mother that she had been raped by the defendant. She also promptly thereafter reported the incident to police. ¹

Some time later, she had an abortion. Samples of fetal tissue were collected and examined to determine, among other things, the approximate date of conception. At trial, a doctor testified that she could not fix the date with any precision and instead provided a range. The range described by the witness arguably included the date of the alleged rape by the defendant.

For his part, the defendant denied having sexual intercourse with the complainant, consensual or otherwise. The defense theory was that the complainant had accused the defendant in order to place the blame on him. To this end, the defendant sought to introduce evidence of the complainant's sexual activity at the time of the alleged rape. All evidence of that nature was excluded by the trial judge, apparently under G.L. c. 233, § 21B, the rape shield statute.

1. Lesser included offense instruction. As noted, the defendant was indicted for forcible rape of a child but convicted of the lesser offense of rape of a child (so-called "statutory rape"). The judge instructed the jury on the lesser offense over the defendant's strong objection. As noted, his defense consisted of a complete denial, and he apparently did not want to give the jury an opportunity to return a compromise verdict. The defendant claims that the judge's instruction on statutory rape was not supported by the evidence and so was improper. We must resolve this claim first since, if the defendant is correct, he is not only entitled to reversal of his conviction but dismissal of the indictment as well. See Commonwealth v. Nardone, 406 Mass. 123, 132, 546 N.E.2d 359 (1989) (conviction on lesser offense constitutes acquittal of greater offense).

The test for determining whether an instruction on a lesser included offense is appropriate in any particular case is whether "the evidence provides a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense." Commonwealth v. Santo, 375 Mass. 299, 305, 376 N.E.2d 866 (1978). Stated differently, in order for instructions on a lesser included offense to be warranted, the jury must be presented with some rational basis on which to reject the Commonwealth's proof on one or more of the requisite elements of the greater offense. In Commonwealth v. Egerton, 396 Mass. 499, 505, 487 N.E.2d 481 (1986), the Supreme Judicial Court concluded that this basis cannot take the form of the mere possibility that the jury might not credit a portion of the Commonwealth's evidence. Rather, the defendant, in some manner, must affirmatively and (at least to some degree) effectively rebut the Commonwealth's factual allegations in order for an element of the greater offense to be deemed "in dispute."

However, in Commonwealth v. Thayer, 418 Mass. 130, 133, 634 N.E.2d 576 (1994), the court departed from the rule delineated in Egerton, holding that the possibility of jury disbelief of a portion of the Commonwealth's evidence may in fact provide a basis for an instruction on a lesser included offense. In Thayer, as in the present case, the defendants had been charged with forcible rape of a child but were convicted of statutory rape. As here, the defendants in Thayer wholly denied the charges--offering no evidence whatsoever to rebut the allegations of the use of force--and objected when the judge provided the lesser included offense instruction. The court, however, held that the instructions on statutory rape were appropriate in that case.

Because the present case is indistinguishable from Thayer in that regard, that decision controls the outcome here. We conclude, therefore, that there was no error in the contested instructions.

2. Prosecutor's closing argument. The defendant challenges various aspects of the prosecutor's closing argument. Specifically he alleges that the prosecutor asserted facts not in evidence, suggested that he possessed personal knowledge of extraneous, inculpatory evidence, and personally vouched for the credibility of the complainant. The record largely supports these contentions.

During the prosecutor's closing, he said the following about the complainant's credibility (emphasis added):

"Why would a twelve-year-old come into this courtroom and say something that wasn't true? Does it make sense? Of course it doesn't. She told the truth. She said what she experienced on December 31st."

Later he added:

"This is not a twelve-year-old who was sexually active, running the streets, doing things that might leave you to believe that she would come in here and lie. Nothing. Absolutely nothing. I tell you, ladies and gentlemen, she was credible. And I submit that there was nothing that occurred during the course of this trial that which [sic ] would make you believe that she didn't tell the truth."

He concluded by stating:

"It was extremely painful during the course of her testimony. That wasn't contrived. These allegations aren't manufactured. And believe me, the primary witness that you have to believe or disbelieve is [the complainant]. You must say to yourself that I believe her."

The defendant claims that in these statements the prosecutor overstepped the bounds of permissible argument. ²

Assertions of personal opinion by an advocate regarding the credibility of witnesses are prohibited. Commonwealth v. Chavis, 415 Mass. 703, 713, 616 N.E.2d 423 (1993). See also S.J.C. Rule 3:07, Canon 7, DR 7-106(C)(4), as appearing in 382 Mass. 787 (1981). Such endorsements, while always prejudicial, are especially damaging when stamped with the imprimatur of a public official, such as a prosecutor. Likewise, the potential for prejudice is great where, as here, the credibility of conflicting witnesses is the key issue for the fact finder to resolve. Although we have said on other occasions that "some measure of jury sophistication with regard to sorting out hyperbole" must be assumed, see Commonwealth v. Azar, 32 Mass.App.Ct. 290, 308, 588 N.E.2d 1352 (1992), quoting from Commonwealth v. Good, 409 Mass. 612, 626, 568 N.E.2d 1127 (1991), the prosecutor strayed so far over the line that this tolerance cannot cleanse this summation.

More troubling is that the prosecutor alluded to the existence of potentially important facts that were not supported by the evidence. As noted, the defense was premised on the notion that the complainant had falsely accused the defendant of rape to explain her pregnancy. Although the judge refused to permit the defendant to introduce evidence of the complainant's prior sexual activity, implicit in this defense was the suggestion that she was sexually active. In view of these circumstances, it was highly prejudicial for the prosecutor to argue that "[t]his is not a twelve-year-old who was sexually active, running the streets, doing things that might leave you to believe that she would come in here and lie," where no testimony whatsoever was offered on the question whether she was or was not sexually active.

In determining whether improper argument warrants...