Commonwealth v. Deloney
| Decision Date | 26 August 2003 |
| Docket Number | No. 01-P-1196.,01-P-1196. |
| Citation | 794 NE 2d 613,59 Mass. App. Ct. 47 |
| Parties | COMMONWEALTH v. TERRANCE DELONEY. |
| Court | Appeals Court of Massachusetts |
Present: Cypher, Kantrowitz, & Cowin, JJ.
Claudia Leis Bolgen for the defendant.
Seema Malik Brodie, Assistant District Attorney, for the Commonwealth.
The defendant was convicted by a jury of unlawful unnatural sexual intercourse with Sam,1 a child under the age of sixteen, G. L. c. 265, § 23; indecent assault and battery on David, a child under the age of fourteen, G. L. c. 265, § 13B; two counts of indecent assault and battery on Sam, a child under the age of fourteen; and contributing to the delinquency of a child, David, G. L. c. 119, § 63.2 He attacks the convictions in three respects: (1) that there were improprieties in the prosecutor's opening statement and closing argument; (2) that an expert witness called by the Commonwealth impermissibly vouched for the credibility of the child witnesses; and (3) that it was error for the trial judge to admit in evidence certain statements made by the defendant to the police, at least in the absence of factual findings on the issue of alleged police coercion.
We conclude that there was no error with respect to the prosecutor's opening statement, and nonprejudicial error in the closing argument. There was no error in the admission in evidence of the defendant's statements to the police. The defendant's challenge to the testimony of the Commonwealth's expert witness plunges us again into the confusion surrounding the efforts of experts to "educate" the jury regarding the characteristics of child abuse victims. We believe that the testimony in this case constituted impermissible profiling in that it identified supposedly general characteristics of abused children that paralleled too closely those of the child victims in the case itself. Accordingly, it was error to admit that testimony. Nevertheless, given the other evidence, and particularly the defendant's admissions, we conclude that the outcome would not have been different had the error not occurred. Accordingly, we affirm.
1. Material facts. The jury could permissibly have found the following facts. Sam, age ten, lived with his mother, brother, and two sisters, as well as his mother's boyfriend (not the defendant). The defendant was a friend of Sam's mother. Sam had known the defendant for three years. During the year before the night in question, the defendant slept at Sam's house regularly. When at the house, the defendant customarily played basketball or watched television with the children, and took them to movies or a restaurant, often carrying on these activities with Sam alone. There was evidence that Sam had learning difficulties, and that he had been required to repeat the first grade.
On more than one occasion, the defendant touched Sam's penis, lowering Sam's boxer shorts when he did so. At other times, the defendant put Sam's penis in his mouth. Although the defendant requested that Sam touch his (the defendant's) penis with his hands and mouth, and even offered him money to do so, Sam refused. The defendant made Sam promise not to tell anyone of these contacts, and when Sam so promised, gave him a video game console as a gift.
On April 3, 1998, David, also age ten and a friend of Sam, went to Sam's house to spend the night. Prior thereto, David had never met the defendant. During the evening, David walked to a variety store with the defendant and one of Sam's sisters. At the store, the defendant purchased chips and candy for David. While walking home, the defendant asked David, in the sister's presence, whether he "liked jerking off." Later, the defendant told David that he would buy him everything he had bought for Sam, and a bicycle as well. Subsequently, the defendant gave Sam and David a sip of beer from a glass bottle, and asked David, outside of Sam's presence, to show him the size of his penis.
Sam and David went to sleep by themselves in a room ordinarily shared by Sam and his brother (who was not present that night). At 3:30 A.M., the defendant entered that room, brought David under a blanket, rubbed David's upper leg, placed his hand underneath David's night clothes, and touched the top of David's penis. Frightened and upset, David started to cry, and ran first into the bathroom, and then into another room where Sam's sisters slept. The defendant followed him there, telling him to return to Sam's room.
At about 5:00 A.M., David awakened Sam, and the boys played video games. At about 6:30 A.M., the defendant returned to Sam's room. Frightened, David told the defendant that he had vomited during the night, and had to go home to take a shower. He said that he would return at 8:00 A.M. and promised not to tell what the defendant had done. Upon arriving at his home, David reported the defendant's behavior first to his mother, and then to his uncle. The police were called, and David subsequently described the incident to them. The police went immediately to Sam's house, where they arrested the defendant.
After the arrest, Sam disclosed for the first time that he had also been abused by the defendant. He stated that he was afraid to tell because he thought that the defendant might harm him or that people might call him gay. He also testified that he feared that the Department of Social Services would become involved, and that he might be taken away from his mother.
At the police station following his arrest, the defendant, having been read his Miranda rights, agreed to speak to the officers.3 A tape recording of the defendant's interrogation was played at trial, during which the defendant admitted touching Sam inappropriately approximately four times. In his statement to the police, the defendant denied touching David, but admitted that he had a conversation with David in which he asked him, "Why do you want to masturbate like that at an early age?" The defense at trial was essentially that the boys fabricated the sexual abuse4; that David incorrectly identified the defendant because of the darkness (thereby suggesting that the perpetrator was actually Sam's mother's boyfriend); and that his admissions to the police were the product of coercion.
2. Opening statement and closing argument. The defendant attacks the prosecutor's opening statement, as well as her closing argument. Timely objections having been lodged as to both, we review for prejudicial error. See Commonwealth v. Santiago, 425 Mass. 491, 500 (1999).
With respect to the opening statement, the defendant contends that the prosecutor's use of a narrative style had the effect of suggesting that she had personal knowledge of the facts of the case, and therefore constituted improper vouching. "A prosecutor may not express a personal opinion as to the credibility of a witness or assert personal knowledge of the facts in issue." Commonwealth v. Francis, 432 Mass. 353, 357 (2000). She may, however, state what she expects to be able to prove. Ibid. Here, the prosecutor did just that. There is nothing wrong with a narrative as long as it remains clear to the jury that the narrative is a prediction of what will be established by the evidence. Contrary to the defendant's contention, Commonwealth v. Griffith, 45 Mass. App. Ct. 784, 785-786 (1998), where the prosecutor described evidence he was not in a position to introduce, is not helpful to the defendant given that, in the present case, the substance of the prosecutor's opening was in fact borne out by the evidence — as the prosecutor would have reasonably expected it to be. Any possible prejudice was cured by the judge's instruction that opening statements are not evidence. Commonwealth v. Simpson, 434 Mass. 570, 584 (2001).
The defendant launches multiple attacks on the prosecutor's closing argument. We address each in turn. He objects first to the prosecutor's assigning to him of "thoughts" regarding his molestation of the children, arguing that there was neither evidence of his thoughts nor other evidence from which inferences regarding his thoughts could reasonably be drawn. At the same time, he objects to the prosecutor's use on several occasions of the term "cocky" as a characterization of the defendant. We agree that a prosecutor may neither engage in prejudicial characterization of the evidence nor argue conclusions that the evidence does not logically support. See Commonwealth v. Rivera, 52 Mass. App. Ct. 321, 326 n.3 (2001). Reasonable inferences from the evidence are obviously permissible. See Commonwealth v. Kater, 432 Mass. 404, 422 & n.14 (2000). Here, a reading of the argument as a whole convinces us that the prosecutor urged on the jury reasonable conclusions regarding the defendant's motivations in dealing with the children, and while the tone was somewhat overwrought in places, the propositions were not unfair. Likewise, as the trial judge observed, describing the defendant as "cocky" was a comment both on his demeanor as a witness and on the plausibility of his defense. The jury could properly consider this aspect with other factors in order to arrive at a conclusion regarding the defendant's credibility. The prosecutor's comments did not suggest that she possessed knowledge of incriminating facts not contained in the evidence. See Commonwealth v. Valliere, 366 Mass. 479, 494 (1974).
The defendant challenges the prosecutor's statements that "the defendant thinks he can walk into this courtroom and tell his preposterous story, with all of its inconsistencies, and lie to you and that you'll buy it"; that the defendant assumed the child victims would be too "ashamed" and "scared" to testify; and that in fact the defendant ought to be the one who should be ashamed and scared. The defendant characterizes the prosecutor's comments as an invitation to the jury to view the defendant unfavorably for his decision to exercise his constitutional rights to contest the charges, have a trial by...
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