Commonwealth v. Donovan, 01-P-1760.

• Court: Appeals Court of Massachusetts
• Citation: 58 Mass. App. Ct. 631
• Docket Number: No. 01-P-1760.,01-P-1760.
• Parties: COMMONWEALTH v. Michael S. DONOVAN.
• Decision Date: 30 July 2003

Page 1

COMMONWEALTH

v. Michael S. DONOVAN.

No. 01-P-1760.

Court of Appeals of Massachusetts.

January 13, 2003.

July 30, 2003.

Rape. Indecent Assault and Battery. Threatening. Practice, Criminal, Argument by prosecutor, Harmless error. Constitutional Law, Self-incrimination. Police, Self-incrimination. Evidence, Consciousness of guilt. Error, Harmless.

Indictments found and returned in the Superior Court Department on March 12, 1999.

The case was tried before Francis R. Fecteau, J.

Eric S. Brandt, Committee for Public Counsel Services, for the defendant.

Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.

Present: Jacobs, Kaplan, & Kafker, JJ.

KAFKER, J.

The defendant, Michael S. Donovan, was convicted of multiple counts of aggravated rape, indecent assault and battery, kidnapping, and threatening to commit a crime. He contends that aspects of the prosecutor's closing, which focused on the significant variance between his post-Miranda statements to the police and the defense theory at trial, constitute reversible error. The defendant, who did not testify at trial, particularly objects to the prosecutor's comments on (1) the defendant's statements, made to police officers, that "[i]t was not me," and that the defendant did not know anything about the incident; and (2) the defendant's failure to tell the officers that his sexual relations with the victim were consensual, which was the essence of his trial defense. He also alleges that the prosecutor made inflammatory appeals to the jury's sympathies. We affirm the convictions of aggravated rape, indecent assault and battery, and threatening to commit a crime.[¹] Because the defendant had waived his Miranda rights, it was not improper for the prosecutor to identify the significant inconsistencies between his post- Miranda statements and the trial defense, and to comment on the fair inferences that could be drawn from such inconsistencies, including that the post-Miranda statements were false and evidence of consciousness of guilt.

Background. The Commonwealth produced ample evidence proving that the defendant had sexual relations with the sixteen year old victim, and the fact was not contested by the defendant at trial. The Commonwealth's evidence included DNA analysis of sperm found in the victim's underwear, and the victim's identification of the defendant's tattoos and jewelry, as well as objects found inside his pick-up truck, which he used to transport the victim to a remote area where the rape occurred.

The victim testified that she decided to take a walk at 11:00 P.M. on July 9, 1998, because it was "hot and stuffy" and she was bored. She testified that at the corner of Mechanic and Ninth Streets in Leominster, a man jumped out from behind some bushes, grabbed her, put a hunting knife to her throat, and told her, "Don't scream or I'll kill you." He then dragged her to a dark-colored pick-up truck that was parked at the corner, put her hands behind her back, and placed handcuffs on her wrists. He drove her to a remote, fenced-in location, told her to do what he said or he would kill her, and forced her to engage in a number of sexual acts which she testified were all without her consent. Afterwards, he told her that he knew where she lived and knew her family, and that if she did anything, he or his friends would go after her; he added that his friends "will be mad at me for not bringing you to them to share you." He drove her to the corner of Twelfth and Mechanic Streets, made further threats, and then took the key out of the truck's ignition and used a handcuff key on the key ring to remove the handcuffs.

When the victim got home, she was screaming and hysterical. She told her friend, at whose family's house she was living, that she had been handcuffed, kidnapped, and raped. The friend testified to the red marks around her wrists and her condition and statements. He called the police, who also observed the pressure marks on the victim's wrists and took her statements regarding the rape. The victim was taken to Leominster Hospital. The treating physician testified to the victim complaining of pain and injury to her wrists, and the medical records introduced at trial indicated abrasions to the wrists. Hospital personnel examined the victim and collected evidence for a sexual assault kit.

Based on the victim's description, the police delivered a composite sketch of the suspect to the press. Stories appeared in the local newspaper. On July 15, 1998, police officers went to the defendant's residence to look for the pick-up truck the victim described. They spoke to the defendant and his wife and asked the defendant to come to the police station to discuss the case. He agreed. After the defendant and his wife left for the station with some of the officers, other officers went to the back of the defendant's house and saw a black pick-up truck. When they peered inside they noticed an air freshener labeled "Tazmanian [sic] devil" that matched the victim's description. The truck also differed from that described by the victim in certain respects. There was no light on top of it as she had reported, but there was a round rust spot as well as other indications that something had been removed. Also missing were the citizens band (CB) radio and stuffed animals the victim had described inside the truck.

At the station, the police officers advised the defendant of his Miranda rights, and he signed a form waiving his rights. He also indicated verbally that he understood his rights and agreed to speak to the officers. The officers asked whether he was familiar with a sexual assault case they briefly described. The defendant immediately responded that it was not him. The police officers then asked him specific questions, including, "Are you familiar with or have you heard about the case in question?" He answered, "No, I have no idea what you're talking about." Next, he was asked a series of questions about knives, including whether he owned hunting knives, to which he replied, "No." The officers then asked him questions about tattoos on his arms. He acknowledged having the tattoos, and allowed the officers to photograph them. He was asked where he worked and whether he played pool on the night in question, to which he answered, "Yes."[²] He was asked when he left the pool hall and he said, "I stayed after playing pool talking to the bartender until 12:30, one o'clock."[³] He said he went home after leaving the pool hall. He was then advised that he and his vehicle fit the description given by the victim of the attack and he immediately stated, "It's not me. I don't know what you're talking about. This is crazy."

Following the interview, the defendant was arrested. Warrants obtained to search the defendant's home and truck were executed on July 16, 1998. In his home, the police found various items described by the victim, including a CB radio with brackets and screws, an orange plow light, and a hunting knife. The defendant's wife also gave the officers a key ring that included a handcuff key. The victim testified that the key ring looked like that used by the assailant. No handcuffs were found. The search of the house also produced a newspaper dated July 15, 1998, which included the composite picture the police had provided to the press. A mustache had been drawn on the composite. The defendant's booking photograph showed that when arrested, he had a small mustache.

The defendant did not testify at trial. The sole defense, as emphasized by defense counsel in opening and closing, was consent. The issue of consent was raised through cross-examination of the Commonwealth's witnesses, particularly the victim, whose credibility and motives were impugned. Defense counsel also elicited testimony regarding the lack of bruises or red marks appearing in photographs taken of the victim's wrists.

Discussion. a. The prosecutor's closing. The defendant challenges the propriety of the following portion of the prosecutor's closing argument:

"He went to the police department. You heard from [police officers] that [the defendant] at that time had the opportunity to tell them whatever he wanted to. They gave him plenty of time. If this were consensual, ladies and gentlemen, this is the time to say so.... If you are looking for the truth, you are not going to find it in what he told the police.

"What did he tell them? [The police] advised him that they were investigating a rape and a kidnapping in Sterling and Leominster respectively, and he immediately said to them, `It's not me.' That's an untruth. It's a lie.

"He was asked if he knew anything about the incident. He said no. Well, we now know that's a lie because in his house, in a room with his personal papers in it, the police found [a newspaper article] with a composite and a little mustache drawn on it ... [so] he lied to them about that."

b. Sufficiency of objections. The Commonwealth contends, first, that any error was not sufficiently preserved, and that we should decline to address the merits of the defendant's arguments for this reason. Although the defendant did not properly object to the officers' trial testimony, defense counsel objected at the end of the prosecutor's closing argument. At that point, defense counsel told the judge she took issue with the prosecutor "commenting on the defendant's statement, calling it false, a lie, because [the defendant] said he did not commit a rape and kidnapping, that's up to the jury to make that determination." We assume, without deciding, that defense counsel's statements "fairly alerted the trial judge" to her objection to the prosecutor's comments on the defendant's denials and consider the question as if it were properly preserved. See Commonwealth v. Rivera, 425 Mass. 633, 636 (1997); Mass.R.Crim.P. 22, 378 Mass. 892 (1979). As appellate defense counsel correctly conceded, however, defense counsel did not object to the prosecutor's comment...