Commonwealth v. Clarke

• Decision Date: 27 January 2000
• Docket Number: No. 98-P-1361.,98-P-1361.
• Citation: 722 NE 2d 987,48 Mass. App. Ct. 482
• Parties: COMMONWEALTH v. ALTON CLARKE.
• Court: Appeals Court of Massachusetts

48 Mass. App. Ct. 482

722 NE 2d 987

COMMONWEALTH v. ALTON CLARKE.

No. 98-P-1361.

Court of Appeals of Massachusetts, Suffolk.

November 18, 1999.

January 27, 2000.

Present: PORADA, KAPLAN, & GILLERMAN, JJ.

James M. McDonough for the defendant.

Jennifer M. Davis, Assistant District Attorney, for the Commonwealth.

GILLERMAN, J.

The defendant, Alton Clarke, was charged with three counts of aggravated rape pursuant to G. L. c. 265, § 22(a), one count of assault by means of a dangerous weapon pursuant to G. L. c. 265, § 15B(b), and one count of kidnapping pursuant to G. L. c. 265, § 26. Clarke's first jury trial in January, 1997, resulted in a mistrial. After a second jury trial in August, 1997, Clarke was convicted on two counts of aggravated rape and on the kidnapping count. On appeal, he makes numerous claims including, principally, that the prosecutor impermissibly introduced testimony regarding the defendant's post-Miranda silence, and that the prosecutor improperly commented on that silence in his closing argument. We reverse.

1. Background facts. The jury could have found the following material facts. Sometime between March 6 and March 10, 1995, the complainant went to the home of her boyfriend, in Roxbury, around 9:30 P.M. Presently, the complainant left her boyfriend's house and started walking to Dudley Station for Chinese food. A burgundy Toyota passed her, then turned and pulled up onto the sidewalk in front of her. The defendant, whom the complainant did not recognize, got out of his vehicle, proceeded to the passenger side, pointed a black revolver at the complainant, and pushed her inside the automobile.

Clarke then got back into the vehicle and drove off. He kept the revolver pointed at the complainant while he was operating the vehicle. Eventually he pulled into the driveway of a white, split-level house. The complainant saw the number 22 on the front door. Clarke, using his key, opened the front door and told the complainant to go down the stairs leading to the basement. Clarke took her over to a couch, where he removed her clothes and his pants, shoes, and underwear. He pushed her down on the couch. He then pushed the revolver inside her vagina and moved it back and forth. After that, Clarke inserted his penis into her vagina and then into her mouth. The complainant screamed, but Clarke told her to "shut up."

When the assault ended, Clarke told the complainant to go into the bathroom and wash up. After she did this and got dressed, they left the house. As they were leaving, the complainant noticed a street sign labeled "Skyview Lane." The complainant directed Clarke to drop her off at her aunt's house, because she did not want him to know where she lived. She stayed with her aunt until about 9:30 P.M. the next evening, and then she called her boyfriend to come and pick her up. The complainant told her boyfriend that she had been raped, and she said that she did not want to go home. Her boyfriend took her to the Hyatt Regency Hotel in Cambridge, where they stayed for two or three days.¹

About three weeks later, the complainant went to Boston City Hospital to visit her boyfriend's cousin, who had been shot. While she was there, she saw Clarke in the hospital corridor. She pointed Clarke out to her friends; they chased him through the lobby area and out of the hospital. They caught up with Clarke and "beat him." Throughout the confrontation, the complainant screamed: "That's him, that's the person that raped me." The complainant subsequently described to the police what Clarke had done to her.

The Commonwealth also introduced evidence that a woman named Norma Aldridge lived at 22 Skyview Road in Randolph. Aldridge testified at trial that she began dating Clarke in December, 1994, and that she ended the relationship sometime in February or March of 1995. She also testified that she owned two cars, a red Acura Integra and a red Subaru Legacy. While they were dating, Clarke would sometimes drive her to work, and he borrowed her red Subaru a few times.

Clarke testified in his own defense. He did not deny having an encounter with the complainant, but his version of what happened differed significantly. Clarke testified that on the evening of February 28, 1995, he went to Conway's in Mattapan to buy some chicken. While he was in the store, the complainant approached him and asked him if he wanted to "go out." He agreed, and they proceeded to have a discussion regarding her fee. Clarke agreed to pay her forty dollars "up front" and forty dollars when they reached their destination.

When they arrived at 22 Skyview Road, they went into the basement, and the complainant asked for the rest of the money. Clarke told her that he did not have the additional forty dollars, which upset her. He asked her to return the money that he had originally paid her, but she refused. He then retrieved the forty dollars from her purse, after which she started swearing and threatened to accuse him of rape. Clarke testified that he did not have sex with the complainant that night.

Clarke also testified that a few weeks later he was at Boston City Hospital because his wife was five months pregnant and was ill. As he was leaving the hospital, he was attacked by four males. He became scared, ran, and was later apprehended by a hospital security guard.

2. Post-Miranda interrogation. Detective Donna Gavin of the Boston police department's sexual assault unit testified at the trial that she interviewed Clarke at the police station after the incident at the hospital. She entered Clarke's holding cell and read him his Miranda rights. Clarke told Gavin that he was willing to speak to her.

Gavin first asked Clarke who lived in Randolph. He responded: "A girl, a friend, Norma," and he gave 22 Skyview as her address. Clarke denied that he had ever taken a female guest to 22 Skyview. When Gavin asked him what type of car he drove, he initially stated that he did not drive, but he later said that he used to own a 1980 Toyota. She then asked him who owned the Subaru, and he said that Norma did.

Gavin also asked Clarke if he knew the complainant. He told her that he had never seen the complainant before. Gavin then asked him how the complainant would know the address of 22 Skyview. He responded that the security guards at Boston City Hospital had removed some of his papers from his wallet and that they had disclosed his personal life to her. When Clarke was asked how the complainant might have been able to describe the house at 22 Skyview Road, Gavin stated that his response was "that he is not guilty and that he has nothing to say about how she would know how to describe the house."² Gavin then stopped the questioning.³

Prior to trial, Clarke had filed a motion in limine to exclude the statements he made to Gavin, and, in particular, his response, quoted above, to the last question put to him by Gavin. He claimed that he was exercising his right to remain silent when he answered the question. The motion judge denied the motion and found that Clarke had knowingly and voluntarily waived his right to remain silent.

(a) The Doyle problem. Clarke argues on appeal that the denial of his motion to suppress (with its focus on the alleged inadmissibility of his last statement to Gavin), the admission of Gavin's testimony (including Clarke's last statement to her) at the trial over his objection, and the prosecutor's use of Gavin's testimony, over his objection, during closing argument deprived him of his right to due process and of his right to a fair trial. We discuss each of these claims separately.

Commonwealth v. Waite, 422 Mass. 792, 798 (1996), teaches that while Doyle v. Ohio, 426 U.S. 610 (1974), precludes the use of the defendant's post-Miranda silence against the defendant, "still, in a few situations evidence of silence is properly admitted because it is not `used against' the accused." Commonwealth v. Waite, supra. The court cited Commonwealth v. Habarek, 402 Mass. 105 (1988), as an illustration. There the court wrote that the police officer's "testimony on direct examination concerning the defendant's request to end the interrogation was introduced in the context of the entire conversation, and was admitted so as not to leave the jury wondering why the interview ended abruptly." Id. at 110. Thus, in Waite, the court wrote, "One statement on direct examination simply put an abruptly concluded conversation in context." Commonwealth v. Waite, supra at 798. So it was here. Clarke, after answering a number of Gavin's questions, abruptly terminated the interview. Without Clarke's statement, Gavin's termination of her questioning was at best confusing, and at worst inexplicable. There was no error in the denial of the motion to suppress. For the same reason, and on the same authorities, there was no error in the admission of Clarke's last statement to Gavin at the trial.⁴

The Doyle problem continues, however.⁵ "The sine qua non of a Doyle violation is the government's use of the defendant's silence against him." Commonwealth v. Waite, 422 Mass. at 798 (emphasis in original).

Clarke claims that his silence was used against him when the prosecutor made the following statements in closing argument:

"But then, when Detective Gavin said to him, how would she the complainant know, how would she be able to describe that house, his Clarke's answer was, I don't want to talk anymore. I am not going to. And, at that point in time, he realized that she was able to describe the inside and the outside of that house. She was able to know that it was 22 Sky View. And, at that point in time, he changed his defense. At that point in time, he came before you now and to say, no, she was a prostitute, and concocted the whole story." (Emphasis added.)

The defendant objected; the objection was overruled. No curative instruction was given by the judge, and the prosecutor continued his summation:

"When she Gavin talked to him Clarke, she asked

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