Com. v. Pontes

• Decision Date: 09 May 1988
• Parties: COMMONWEALTH v. Robert PONTES (and two companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 931

522 N.E.2d 931

402 Mass. 311

COMMONWEALTH v. Robert PONTES (and two companion cases ¹).

Supreme Judicial Court of Massachusetts Suffolk.

Argued Jan. 4, 1988.

Decided May 9, 1988.

Michael R. Schneider, Committee for Public Counsel Services (Christopher S. Skinner, Boston, with him) for John R. MacLean.

John J. Connell, Boston, for Robert Pontes.

Daniel Mullane, Asst. Dist. Atty., for the Com.

Before WILKINS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

After a joint jury trial the defendants, Robert Pontes and John R. MacLean, were each convicted of two counts of aggravated rape. Defendant MacLean was also convicted of assault and battery, and this conviction was placed on file. MacLean was acquitted of kidnapping, and Pontes was acquitted of kidnapping and assault & battery. They appealed, and we took the case on our own motion. We now affirm the convictions.

The relevant facts are as follows. In the early morning hours of May 30, 1985, the victim was offered and accepted a ride from the defendant Pontes. Also in the vehicle were the defendant MacLean and one Joseph Hayes. The group then picked up defendant MacLean's brother, Thomas. The defendants stated that they were going to Hyde Park Avenue and that the victim could come along. Instead of going to Hyde Park Avenue, the defendants made several stops and after a while let Hayes out.

The victim asked if she could get out of the automobile. Defendant Pontes responded, "No. Don't you want to fool around," but using what the victim termed "stronger words." The victim then asked to be driven to "Jado's," a liquor store. Defendant Pontes stated that she could go to Jado's but he first had to go to the North End. The defendant Pontes then drove the automobile down a long alley in a waterfront area and stopped, whereupon the defendant MacLean, without a word, punched the victim in the face.

A struggle ensued between the victim and the defendants during which one of the defendants said, "Shut up, or we'll get the knife." As the struggle continued, the defendant MacLean forced the the victim to have vaginal and oral sex with him. The victim continued to scream as this occurred and was told that if she did not keep quiet, she would be thrown into the water in front of the car. Defendant Pontes then forced the victim to have vaginal and oral sex with him.

When Pontes indicated that he wanted to have sex again, defendant MacLean attempted to stop him and a fistfight erupted between the two. Defendant Pontes began swearing and the fight continued outside of the automobile. The victim and Thomas MacLean got out of the automobile and stood outside until the fight was over. Defendant Pontes then got back into his automobile, backed it up and in the process struck the victim with the vehicle's open front door.

Defendant MacLean then borrowed some money from his brother and left for work. Thomas MacLean helped the victim to a subway station. She boarded a train and then a bus to Roslindale, where she encountered her sister. The victim and her sister drove to the victim's parents' home, where the victim told her parents what had happened, and her mother called the police. The victim was then taken to Brigham and Women's Hospital. The victim's father and brothers went to Pontes's house, but were unable to confront him.

At Brigham and Women's Hospital the victim was treated and pictures were taken of her injuries. Acid phosphatase and Wood's Lamp tests revealed the presence of seminal fluid in the victim's vagina. Vaginal swabs tested positive for sperm; oral swabs did not.

After the victim had identified Pontes's automobile and the place where the incident occurred, the police arrested defendant MacLean at his home. Defendant Pontes was later located in the custody of the San Bernardino County (California) sheriff's department and subsequently was arrested.

Defendant MacLean claims that the judge below erroneously denied his motion to sever his trial from that of codefendant Pontes, and that the prosecutor committed certain improprieties in his closing argument. Defendant Pontes argues that the judge erred in denying his motion for a required finding of not guilty on the charges of aggravated rape. We consider each of these claims in turn.

1. The motion to sever. Defendant MacLean claims that the trial judge erred in denying his motion to sever the trials under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). According to Bruton, severance is constitutionally required where: a codefendant's extrajudicial statements are offered in evidence at a joint trial; the statements are "clearly inadmissible" as against the defendant; the codefendant is not subject to cross-examination because he does not testify; and, finally, there is a substantial possibility that, in determining the defendant's guilt, the jury relied on the codefendant's "powerfully incriminating extrajudicial statements" notwithstanding any limiting instructions from the judge. Id. at 128 & n. 3, 135-136, 88 S.Ct. at 1627-1628. See Commonwealth v. Devlin, 365 Mass. 149, 156, 310 N.E.2d 353 (1974); Commonwealth v. LeBlanc, 364 Mass. 1, 7-10, 299 N.E.2d 719 (1973).

By way of demonstrating consciousness of guilt on the part of defendant Pontes, the Commonwealth twice offered evidence of his flight after the incident. On both occasions, the judge instructed the jury that the testimony was admissible only against Pontes and not against defendant MacLean. Neither defendant testified. Defendant MacLean argues that, notwithstanding any limiting instructions, the jury would inevitably view defendant Pontes's flight as communicative conduct from which the guilt of both defendants could be inferred. We disagree.

Even assuming as correct the doubtful proposition that Pontes's act of fleeing may be deemed an extrajudicial admission of guilt within the meaning of Bruton, ² evidence of Pontes's flight contains no direct inculpation of defendant MacLean and only limited indirect implication of his guilt. In such a case, an appropriate instruction is enough to obviate Bruton concerns. Commonwealth v. Keevan, 400 Mass. 557, 570, 511 N.E.2d 534 (1987). The judge twice instructed the jury to confine consideration of the evidence of flight to the case against defendant Pontes. Therefore, no severance under Bruton was constitutionally required. ³

2. Prosecutor's closing argument. Defendant MacLean claims that improprieties occurred in the prosecutor's closing argument on three separate occasions. On the first two occasions, contends MacLean, the prosecutor improperly inflamed the jurors' minds to sympathy for the victim by arguing, first, that the crime was "degrading" and, second, that the victim was a "child" or "this girl who was adrift and whom the defendants took advantage of." On the third occasion, the defendant claims, the prosecutor improperly suggested to the jury that they decide the case from the perspective of the victim's father. The defendant objected to the alleged improprieties and moved for mistrial, but did not request curative instructions. The judge did instruct the jury that the summations were only arguments, not evidence.

"The rules governing prosecutors' closing arguments are clear in principle. We have never criticized a prosecutor for arguing forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence." Commonwealth v. Kozec, 399 Mass. 514, 516, 505 N.E.2d 519 (1987), citing Commonwealth v. Earltop, 372 Mass. 199, 205, 361 N.E.2d 220 (1977) (Hennessey, C.J., concurring). We review remarks alleged to be improper in the context of the entire argument, as well as in light of the evidence at trial and any instructions from the judge. Commonwealth v. Lamrini, 392 Mass. 427, 432, 467 N.E.2d 95 (1984). Applying these principles to the argument at hand, we find no error.

In the circumstances of this case, the prosecutor's repeated use of the word "degrading" was not an improper appeal to prejudice, but rather a fair description of what actually happened. The jury had evidence before them that the victim was held in a vehicle against her will, was punched in the face, was threatened, had one pant leg ripped off and was forced to have oral and vaginal sex with defendant MacLean in the presence of defendant Pontes and Thomas MacLean. After defendant MacLean had finished with the victim, defendant Pontes forced her to have oral and vaginal sex, left the vehicle to urinate, and then came back and wanted to have sex again. The episode lasted over three hours. In the circumstances, a description of the crime as "degrading" was a fair characterization of the evidence. "The prosecutor can no more be prohibited from arguing relevant evidence that was heard by the jury than can the judge be prohibited from admitting it. The fact that as a result of hearing such evidence and such an argument by a prosecutor the jurors may have sympathy for the victim is understandable but unavoidable. Any other conclusion would only serve to shield an accused from prosecution in direct proportion to the amount and extent of the force or brutality with which the crime was committed." Commonwealth v. Johnson, 374 Mass. 453, 460, 373 N.E.2d 1121 (1978).

As to the prosecutor's referring to the victim as "this child" or "this girl who was adrift," the characterization appears to have been an attempt by the prosecutor to meet defense challenges to the victim's credibility. The defense had argued that the victim fabricated the story of the rape in order to gain favorable attention from her father, who had ordered her out of the family home shortly before the rape. The prosecutor attempted to rebut this argument by characterizing the victim as a likely target for a rape rather than a young girl fabricating stories to placate her father. ⁴ The characterization did not go beyond the evidence adduced at trial; it simply...