Com. v. Thomas
| Citation | 514 N.E.2d 1309,401 Mass. 109 |
| Parties | COMMONWEALTH v. Edward B. THOMAS. |
| Decision Date | 10 November 1987 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Eileen D. Agnes, Framingham, for defendant.
Michael Fabbri, Asst. Dist. Atty., for Com.
Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and LYNCH, JJ.
The defendant was convicted by a jury on December 17, 1984, of rape, G.L. c. 265, § 22, and indecent assault and battery of a woman we refer to as "Christine." He was also convicted of indecent assault and battery on a retarded person, G.L. c. 265, § 13F, the second victim being a woman we refer to as "Camille." The Appeals Court affirmed the convictions in an unpublished memorandum and order, 23 Mass.App.Ct. 1101, 498 N.E.2d 142 (1986). We granted further appellate review and for the reasons which follow we affirm in part and reverse in part.
On appeal, the defendant challenges all three convictions 1 on the grounds that the prosecutor's closing argument created a substantial risk of a miscarriage of justice by misleading the jury on the burden of proof, by injecting personal beliefs into the argument, and by suggesting that, since the defendant knew he would be punished if convicted, only the defendant had a motive to lie. With respect to the rape conviction, the defendant also claims that the only physical evidence of the rape was improperly admitted, and that he was prejudiced by fresh complaint testimony admitted without limiting instructions.
He also seeks reversal of the conviction for indecent assault and battery on a retarded person for the additional reason that the judge failed to instruct the jury adequately on the element of scienter. In addition, the defendant claims that his conviction for indecent assault and battery on Christine is duplicative of his conviction for rape of the same victim. 2 Since none of these claims was raised adequately by objection at trial, he argues further that the cumulative impact of the claimed errors created a substantial risk of a miscarriage of justice. 3
There was evidence from which the jury could have found the following. Camille and Christine were borderline-to-moderately retarded young adults who shared an apartment in Marlboro. Camille worked in laundry services at a nursing home and Christine worked in the cafeteria of a school. The defendant worked as an orderly at the nursing home.
On November 19, 1983, the defendant left the nursing home to pick up his and his coworkers' dinners. In the course of this activity he encountered Camille outside a pizza shop and drove her home. Upon arrival at the apartment house the defendant followed Camille upstairs to her apartment, saying he wanted to look at her apartment. Although she at first refused him admission, she eventually admitted him into the apartment.
After the defendant kissed her, Camille pushed the defendant away and went to the bathroom to tell Christine to get dressed and go for help; she then locked the bathroom door and proceeded to shower.
Christine dressed and was sitting on her bed drying her hair when the defendant closed her bedroom door and began to kiss and fondle her as he pushed her down on her bed. Although Christine protested, the defendant persisted in undressing her and penetrated her vaginally, causing her to bleed. After a few moments, Christine got dressed and went to the bathroom where Camille was still showering. Upon observing blood on Christine's hands and legs, Camille left Christine in the bathroom and went to get her clean clothes.
The defendant then touched Camille inside her underpants, but did not touch her genitals before she grabbed his hand and removed it. After Camille's second request that he leave, the defendant left the apartment at about 6:30 P.M. The defendant returned to work at 6:43 P.M. after picking up food for his coworkers at a McDonald's restaurant and proceeded to work the remainder of his shift. 4
a. Burden of proof. During closing argument, the prosecution made several statements which the defendant challenges as misleading and grossly prejudicial misstatements of law regarding the Commonwealth's burden of proof. The defendant argues further that the judge's instructions were inadequate to remove the taint created by the prosecutor's statements. Because no objection or request for further instructions was made, our review is limited to a determination whether the alleged errors created a substantial risk of a miscarriage of justice. Commonwealth v. Fitzgerald, 376 Mass. 402, 416, 381 N.E.2d 123 (1978). 5
In his closing argument the prosecutor said, "If I have not met the burden which I accept willingly of proving beyond a reasonable doubt each and every element of the offenses as they are presently charged, if I have failed in that responsibility, find him not guilty if you find that he is truly innocent " (emphasis added). Approaching the conclusion of his remarks he stated, (Emphasis added.)
Both of these statements adversely implicate the defendant's fundamental right to be presumed innocent. See Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). We reiterate that "[l]awyers shall not and must not misstate principles of law nor may their summations infringe or denigrate constitutional rights." Commonwealth v. Smith, 387 Mass. 900, 903, 444 N.E.2d 374 (1983). However, in order to ascertain whether the improper statements created a substantial risk of a miscarriage of justice, we must view particular statements in the context of the entire argument, the judge's instructions, and the evidence at trial. Commonwealth v. Fitzgerald, supra. Commonwealth v. Earltop, 372 Mass. 199, 204, 361 N.E.2d 220 (1977).
Viewing the statements in this light, we conclude that there was no substantial risk that the jury misunderstood the Commonwealth's burden of proof. Directly following the second improper comment reproduced above, the prosecutor correctly stated, "[T]he standard is beyond a reasonable doubt." Shortly thereafter, he concluded by saying,
Most importantly, the judge gave lengthy, detailed, and accurate instructions regarding the meaning of proof beyond a reasonable doubt, instructions which comported with the time-tested language of Commonwealth v. Webster, 5 Cush. 295, 320 (1850). The judge added,
In the absence of a prompt objection by defense counsel there was no substantial risk of a miscarriage of justice resulting from the prosecutor's remarks regarding the burden of proof, where the judge's charge fairly and adequately stated the law on the matter.
b. Fresh complaint testimony. The defendant for the first time on appeal alludes to the prosecutor's reliance on fresh complaint and hearsay evidence as somehow rendering his argument improper or creating a substantial risk of a miscarriage of justice. Not only was the evidence admitted without objection but this issue is not presented here with the clarity required of appellate argument. Tobin v. Commissioner of Banks, 377 Mass. 909, 386 N.E.2d 1246 (1979). Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In addition, our examination of the record reveals that the statements properly characterized as fresh complaints did not supply details of the crime otherwise not in evidence nor were they egregiously prejudicial. The testimony was, at most, merely cumulative. Cf. Commonwealth v. Bettencourt, 361 Mass. 515, 519, 281 N.E.2d 220 (1972).
c. Personal beliefs and credibility of the prosecutor. The defendant next contends that the convictions are tainted because the prosecutor's remark, "[I]f you disbelieve those persons, then I am, indeed, a bad person; because I have aided in a conspiracy to convict an innocent person," as well as his statements set forth below, 6 prejudiced the jury by imposing his personal beliefs. Except for the remark quoted above, the statements objected to are merely unfortunate and unartful isolated instances of the uses of the first-person pronoun which do not interject the prosecutor's personal belief of guilt into the jury deliberation. "Counsel has the right to argue inferences from the evidence favorable to his case, and the precise form should not control unless it tends to lead the jury to an improper inference not from the evidence but from the apparent personal knowledge of the attorney." Commonwealth v. Nordstrom, 364 Mass. 310, 315, 303 N.E.2d 711 (1973).
The conspiracy remarks, 7 however, exceed the limits of propriety and cannot be explained away as a mere...
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