Commonwealth v. Olivier ( 2016 )

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13-P-1216 Appeals Court
COMMONWEALTH vs. HERVE OLIVIER, JR.
No. 13-P-1216.
Middlesex. October 7, 2015. - August 10, 2016.
Present: Katzmann, Rubin, & Wolohojian, JJ.
Rape. Practice, Criminal, Indictment, Lesser included offense,
Sentence, Subpoena, Argument by prosecutor, Jury and
jurors, Voir dire. Subpoena. Evidence, Relevancy and
materiality, Privileged record, Expert opinion. Search and
Seizure, Warrant, Affidavit. Witness, Expert.
Indictments found and returned in the Superior Court
Department on December 15, 2011.
A pretrial motion for presumptively privileged records was
considered by Thomas P. Billings, J., and a renewed motion was
heard by Kathe M. Tuttman, J; a pretrial motion for a hearing on
the adequacy of the affidavit supporting a search warrant was
heard by Thomas P. Billings, J.; and the cases were tried before
Bruce R. Henry, J.
Stanley D. Helinski for the defendant.
Kate Cimini, Assistant District Attorney, for the
Commonwealth.
RUBIN, J. This case presents a question of first
impression about the adequacy of the subsequent offense portion
2
of an indictment where, on the main indictment, a defendant is
convicted not of the charged offense, but of a lesser included
offense that carries a subsequent offense enhancement.
The defendant was indicted on December 15, 2011, on ten
counts. Count 1 charged rape of a child by force under G. L.
c. 265, § 22A. A second part of that count, captioned "Forcible
Rape of a Child -- Subsequent Offense," charged that at the time
of the offense charged in the first count the defendant "was
previously convicted of Indecent Assault and Battery on a Child
Over Fourteen, a violation of Massachusetts General Laws Chapter
265 Section 13[H] in the Framingham Juvenile Court Docket No.
DL05FO606 on November 28, 2007."1 See G. L. c. 265, § 22C.2
1
The subsequent offense portion of count 1 of the
indictment originally contained a typographical error, listing
the statutory section for the previous conviction of indecent
assault and battery on a person over fourteen as "[G. L.
c.] 265, [§] 13B." This error was corrected prior to the trial
on that part of count 1. The defendant does not argue on appeal
that the judge erred by allowing the Commonwealth to amend the
indictment.
2
The original subsequent offense portion of count 1 also
erroneously listed the statutory section for that offense as
"C.265, § 23C." The statutory section providing for a
subsequent offense enhancement for rape of a child by force is
G. L. c. 265, § 22C. The statutory section providing for a
subsequent offense enhancement for statutory rape is G. L.
c. 265, § 23B. The Commonwealth was permitted to amend the
section number to "23B" immediately before the trial on the
subsequent offense portion of the indictment. The defendant
does not argue on appeal that the judge erred by allowing this
amendment.
3
After a jury trial, the defendant was convicted on count 1
not of rape of a child by force, but of the lesser included
offense of rape of a child (i.e., statutory rape) under G. L.
c. 265, § 23. Some eleven days later, a new jury was
empanelled, and the defendant was tried on the subsequent
offense penalty enhancement for the latter crime under G. L.
c. 265, § 23B. See G. L. c. 278, § 11A; Commonwealth v.
Pelletier, 449 Mass. 392, 396 (2007), quoting from Commonwealth
v. Miranda, 441 Mass. 783, 788 (2004) (explaining that § 11A
"requires a defendant to be tried in a two-step, bifurcated
procedure: 'first, on the underlying substantive crime and,
then, in a separate proceeding, on that component of the charge
referring to the crime as a second or subsequent offense'").
See also Commonwealth v. Fernandes, 430 Mass. 517, 520-521
(1999), cert. denied sub nom. Martinez v. Massachusetts, 530
U.S. 1281 (2000) ("[T]he counts for the current offense and for
the repeat offense are viewed as parts of one indictment and
charge only one crime with a sentence enhancement provision").
He was convicted. He received a mandatory minimum sentence of
fifteen years in State prison under the penalty enhancement.3
See G. L. c. 265, § 23B. The defendant now appeals.
3
The defendant was also sentenced to (1) community parole
supervision for life pursuant to G. L. c. 265, § 45, on count 1;
(2) a consecutive term of five years of probation on count 2, a
4
1. The subsequent offense enhancement. The defendant
first argues that since he was acquitted of rape of a child by
force on count 1, the subsequent offense portion of the
indictment was in essence a nullity. The indictment read
"Forcible Rape of a Child -- Subsequent Offense." Since the
defendant was acquitted of forcible rape of a child under the
first count, the defendant argues, if the Commonwealth desired
to try him for the subsequent offense enhancement applicable to
the lesser offense of which he was convicted, it was required to
amend the indictment to say so. He argues that having failed to
do so, the Commonwealth did not put him on notice that he might
be tried for the subsequent offense enhancement were he
convicted of a lesser included offense.4
We disagree. It is well established that an indictment for
a greater offense puts a defendant on notice that he may be
convicted of a lesser included offense that is not named in the
second count of statutory rape for which the Commonwealth did
not seek a subsequent offender enhancement; and (3) 337 days in
the house of correction, deemed served, on counts 6 and 7, two
drug offenses to which he pleaded guilty.
4
Because the relevant question is whether the defendant was
put on notice at the time of the original indictment of what
might follow from conviction of a lesser included offense, the
judge's amendment immediately before commencement of the
subsequent offense portion of the trial of the statutory
citation, but not the language of the indictment, is irrelevant
to our opinion, even if such a change were otherwise sufficient
to cure the alleged notice problem, something we need not and do
not decide.
5
indictment. See Commonwealth v. Keane, 41 Mass. App. Ct. 656,
661 (1996) ("[A]n indictment for aggravated rape clearly gives
notice of the lesser included crime of rape"). Likewise, the
second or subsequent offense portion of an indictment identifies
the previous conviction5 that the Commonwealth will seek to prove
at trial. In such a case, we think that the subsequent offense
indictment puts a defendant on notice that, should he be
convicted of only a lesser included offense for which the prior
conviction named in the subsequent offense indictment also
subjects him to a subsequent offense enhancement, the
Commonwealth may proceed to trial on the subsequent offense
enhancement applicable to the lesser included offense
conviction.
First, we think that this is the way that any reasonable
attorney would understand the indictment, though we recognize
that how any individual attorney would understand the language
of the indictment is an empirical question. Second, we think
that any alternative would be impractical, since the second,
subsequent offense trial is ordinarily conducted immediately
5
In this case, the previous "conviction" was in fact an
adjudication of delinquency, since the defendant was fourteen
years old when he committed the prior offense of indecent
assault and battery on a person fourteen or older. As the
subsequent offense statute for statutory rape provides the same
sentencing enhancement for both prior convictions and prior
adjudications of delinquency, the distinction is immaterial.
See G. L. c. 265, § 23B.
6
after the conviction on the underlying offense. And finally,
such a reading of the indictment does not prejudice the
defendant. No defendant can be certain of a conviction on a
lesser included offense rather than the charged offense.
Therefore, if the prior conviction is to be contested, counsel
will have to prepare for the subsequent offense trial in advance
of trial on the charged offense. In circumstances such as
these, where the specific prior offense to be proved is
identified in the indictment and it subjects the defendant to an
enhancement with respect to the lesser included offense of
conviction, nothing different will be at issue in the subsequent
offense trial than would have been at issue had the defendant
been convicted of the charged, greater offense. There thus can
be no prejudice to the defendant.
We note that nothing that we say prevents the Commonwealth
from determining not to proceed on a subsequent offense
enhancement in the event of conviction of only a lesser included
offense. That discretionary determination remains with the
executive branch. See, e.g., District Attorney for the Suffolk
Dist. v. Watson, 381 Mass. 648, 668 (1980) (prosecutor has
uncurbed discretion to nol pros portions of indictment charging
murder in first degree). We also note that our decision applies
only to indictments such as the one at issue here, which
identifies the prior conviction to be proved. We express no
7
opinion on indictments that may be phrased or structured
differently.
2. The remaining claims of error. The defendant also
claims that the Superior Court judges erred in five other
respects: (1) by denying the defendant's motions seeking the
victim's records; (2) by denying the defendant's motion for a
hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978); (3)
by ruling that the defendant's deoxyribonucleic acid (DNA)
expert could not criticize the thoroughness of the
Commonwealth's investigation; (4) by failing to sustain the
defendant's objection to the prosecutor's misstatements in
closing; and (5) by refusing to ask a series of voir dire
questions proposed by the defendant. We disagree with the
defendant in all respects. Before explaining our reasoning,
however, it is necessary to set forth additional factual
background.
a. Background. As stated previously, the defendant was
indicted on ten counts: two counts of rape of a child by force
as a subsequent offense, G. L. c. 265, § 22A; two counts of
aggravated rape of a child by force (aggravated by kidnapping)
as a subsequent offense, G. L. c. 265, § 22B; one count of
indecent assault and battery on a person over fourteen, G. L. c.
265, § 13H; one count of distribution of marijuana, G. L. c.
94C, § 32C(a); one count of possession with intent to distribute
8
marijuana, G. L. c. 94C, § 32C(a); one count of kidnapping, G.
L. c. 265, § 26; one count of intimidation of a witness, G. L.
c. 268, § 13B; and one count of threat to commit a crime, G. L.
c. 275, §§ 2 & 4. The defendant pleaded guilty to the drug
offenses before trial. He was found guilty of the lesser
included offense of statutory rape on the four indictments that
charged rape of a child by force and aggravated rape. The judge
then vacated the jury verdicts on the aggravated rape charges
and dismissed the indictments as duplicative. The defendant was
acquitted of indecent assault and battery, kidnapping,
intimidation of a witness, and threat to commit a crime. As
discussed above, in the second phase of the trial, a new jury
found that the conviction of rape of a child on count 1 was a
subsequent offense.
We recite the facts a reasonable jury could have found,
taking the evidence in the light most favorable to the
Commonwealth except where the jury verdicts rejected the
Commonwealth's theory of the case. We reserve additional facts
for later discussion of specific issues.
The defendant and the victim started communicating in
October, 2011, when the victim had returned to her grandparents'
house6 in New Hampshire after running away to stay with friends
6
The victim's grandparents were her legal guardians.
9
in Marlborough for three days. The victim used two different
applications installed on her iPod Touch to communicate with the
defendant both by voice and by text message. At some point
during the next few weeks, the victim told the defendant that
she wanted to run away again.
On November 1, 2011, they made a plan for the defendant and
a friend of his, who had a car, to pick up the victim at her
grandparents' house. When the defendant sent a text message
saying that he was nearby, the victim told her grandmother that
the screen in her window was broken. While her grandmother was
looking at the screen, the victim took her purse, a bag she had
packed, and thirty-seven dollars from her grandmother's purse,
and left the house. Before she got into the car with the
defendant, he said that she should tell his friend she was
nineteen. However, at the time she was only fifteen. The
victim's grandmother saw her getting into the car, yelled at her
to stop, and then got in her car and gave chase until she could
no longer see the vehicle she was pursuing.7
The defendant's friend drove to the defendant's house in
Maynard, where he dropped off the defendant and the victim. On
the night of November 2 and the morning of November 3, the
7
The victim testified that she tried to get out of the car,
but the defendant threatened to kill her if she did. The jury's
verdict on the threat to commit a crime charge indicates that
they did not find beyond a reasonable doubt that this occurred.
10
defendant and the victim had sex.8 The victim testified that the
first time they were on the defendant's bed and the second time
they were on the defendant's floor. The victim did not know
whether the defendant used a condom the first time, but
testified that the second time he did use a condom, which he
took from the top drawer of his dresser.
Later on November 3, the victim sent a text message to a
friend of hers asking him to pick her up. When he arrived, she
left without her iPod or her purse because the defendant had
taken them. They drove to a location where the victim's
grandparents could pick her up.
The grandparents then brought the victim to their town
police station, where they had reported her missing. A
detective interviewed the victim. During that initial
interview, she denied that there was a sexual relationship
between her and the defendant. After she gave her statement,
the detective told her that he was not sure she was being
truthful. On November 7, the victim's grandmother called the
police station, and told the detective that there had been
sexual contact between the victim and the defendant. On the
basis of this new information, the Maynard police sought,
8
The victim testified that both instances were not
consensual and were forcible. The jury's verdicts indicate that
they did not find this to be the case beyond a reasonable doubt.
11
received, and executed a search warrant for the defendant's
house on November 8. The police seized, among other things, the
victim's purse and the sheets and blankets from the defendant's
bed.
b. The defendant's rule 17(a)(2) motions. The defendant
argues that the motion judges should have allowed his motions
under Mass.R.Crim.P. 17(a)(2), 378 Mass. 885 (1979), for third-
party subpoenas of the victim's medical records, § 504(b)
records,9 and school records under the protocol set forth in
Commonwealth v. Dwyer, 448 Mass. 122 (2006) (Dwyer).
Prior to trial, the defendant acquired a letter that was
addressed to the victim's primary care provider from a doctor
who had interviewed the victim after she reported the alleged
rape.10 This letter contains three facts relevant to the issues
raised on appeal. First, the letter indicates that the victim
saw a counsellor because of posttraumatic stress disorder (PTSD)
and that the victim's grandmother stated that this condition
resulted from the victim's stepfather locking her out of the
house one night. Second, the letter indicates that the victim
9
See note 11, infra.
10
The letter itself makes clear that the recipient, Amanda
Woodfriend, is the victim's primary care provider, as it states,
"Apparently [the victim] will now be seeing you for primary
care." At the motion hearing, counsel for the defendant
incorrectly suggested that Woodfriend was the victim's
counsellor.
12
told the interviewing doctor that she was planning on informing
her counsellor about the alleged rape during an appointment the
following week. Third, the letter indicates that the victim has
a 504 plan11 at her high school because of her PTSD.
On June 2, 2012, the defendant filed a motion requesting
"[a]ll treatment records and interviews" from the interviewing
doctor and the victim's primary care provider, records relating
to legal guardianship and legal custody proceedings involving
the victim, and records relating to the victim's 504 plan. The
first motion judge denied this motion after a nonevidentiary
hearing on June 4, 2012, essentially on the ground of
relevance.12 On May 3, 2012, the defendant had filed a motion
requesting "all records" of the victim from her high school.13
11
Although the letter does not explain this terminology, a
"504 plan" is a plan "to accommodate [a child's] disability and
enable [her] to attend public school." CTL v. Ashland Sch.
Dist., 743 F.3d 524, 525 (7th Cir. 2014). Public schools are
required by § 504 of the Rehabilitation Act, 29 U.S.C. § 794
(2012), to provide such plans to ensure that individuals with
disabilities are not subjected to discrimination on account of
their disabilities. See C.L. v. Scarsdale Union Free Sch.
Dist., 744 F.3d 826, 831, 840-841 (2d Cir. 2014).
12
On July 19, 2012, the defendant renewed the portion of
the June 2 motion that requested records from the interview and
medical evaluation performed after the victim had reported the
alleged rape. The second motion judge allowed this motion the
same day. The court received the records a little over a month
later.
13
The docket does not reflect the filing of this motion on
May 3, 2012. However, both the defendant's record appendix and
13
After the first motion judge denied this request without
prejudice, the defendant renewed the motion on July 19, 2012.
The second motion judge denied the renewed motion "without
prejudice to renew upon a further showing of evidentiary
relevance pursuant to Mass.R.Crim.P. 17." The defendant did not
renew the motion a second time.
The defendant appeals from the denial of his motions for
third-party subpoenas of the medical records, the records
relating to the victim's 504 plan, and the victim's school
records. Evaluating the defendant's arguments requires applying
the Dwyer protocol.
Dwyer, 448 Mass. at 147-150 (Appendix), established a
multi-step protocol that a defendant must follow to gain access
to presumptively privileged records held by a nonparty via a
rule 17(a)(2) motion. The Dwyer protocol replaced the
restrictive Bishop-Fuller protocol that had previously governed
such motions. See Dwyer, supra at 144 ("[A]mong the most
significant difficulties [with the Bishop-Fuller protocol] is
the inability of defendants to meet the stringent Fuller
standard, even though statutorily privileged records may contain
exculpatory evidence"). See also Commonwealth v. Bishop, 416
the Commonwealth's supplemental record appendix include a copy
of the motion dated May 3, 2012, bearing a handwritten, signed
denial by the first motion judge.
14
Mass. 169 (1993); Commonwealth v. Fuller, 423 Mass. 216 (1996).
The Dwyer protocol relaxes Fuller's more stringent requirements.
See Dwyer, supra at 144 ("The amended protocol is designed to
give the fullest possible effect to legislatively enacted
privileges consistent with a defendant's right to a fair trial
that is not irreparably prejudiced by a court-imposed
requirement all but impossible to satisfy").
The first step of the Dwyer protocol -- which applies to
requests for both privileged and nonprivileged records --
requires the defendant to file and serve a motion pursuant to
Mass.R.Crim.P. 17(a)(2).14 Dwyer, 448 Mass. at 147 (Appendix).
Under Commonwealth v. Lampron, 441 Mass. 265 (2004) (Lampron),
"[T]he party moving to subpoena documents to be produced before
trial must establish good cause, satisfied by a showing '(1)
that the documents are evidentiary and relevant; (2) that they
are not otherwise procurable reasonably in advance of trial by
exercise of due diligence; (3) that the party cannot properly
prepare for trial without such production and inspection in
14
The Commonwealth is required to forward copies of the
motion and the attached affidavit to the record holder and the
victim, and to inform both the record holder and the victim that
they may be heard at the Lampron hearing "on whether the records
sought are relevant or statutorily privileged." Dwyer, 448
Mass. at 148 (Appendix). The defendant has not argued that the
Commonwealth failed to satisfy this requirement of the Dwyer
protocol, so we assume that it was followed in this case, and
that the record holder and the victim chose not to appear at the
Lampron hearing.
15
advance of trial and that the failure to obtain such inspection
may tend unreasonably to delay the trial; and (4) that the
application is made in good faith and is not intended as a
general "fishing expedition."'" Id. at 269, quoting from United
States v. Nixon, 418 U.S. 683, 669-700 (1974). The judge is to
determine whether the requested records are privileged only
after first ruling on whether the defendant has satisfied the
four prongs of the Lampron standard. See Dwyer, supra at 148
(Appendix).
i. The medical records. As to the medical records, the
first motion judge correctly determined that the defendant
failed to meet the first prong of this test for good cause.
Under this prong "the defendant must 'make a factual showing
that the documents sought are relevant and have evidentiary
value'[;] . . . '[p]otential relevance and conclusory statements
regarding relevance are insufficient . . . .'" Dwyer, supra at
142, quoting from Lampron, supra at 269. The standard of
relevance applied to rule 17(a)(2) motions is the same standard
applied to evidence at trial: "the defendant must show that the
documentary evidence sought has a 'rational tendency to prove
[or disprove] an issue in the case.'" Lampron, supra at 269-
270, quoting from Commonwealth v. Fayerweather, 406 Mass. 78, 83
(1989). This standard -- rather than the broad discovery
standard -- applies because "rule 17(a)(2) is not a discovery
16
tool." Dwyer, supra at 142 (emphasis omitted). Thus,
allegations of relevance "couched in hypothetical language" are
insufficient. Commonwealth v. Sealy, 467 Mass. 617, 628 (2014)
(Sealy). That said, in evaluating arguments for relevance under
the first prong of Dwyer, the court must be sensitive to the
fact that the defendant necessarily lacks access to the content
of the requested records. Requiring too much specificity from
the defendant risks resurrecting the restrictive Bishop-Fuller
protocol in another guise. However, requiring too little
specificity risks making the privileged medical records of crime
victims an open book.
The defendant makes three arguments for the relevance of
the victim's medical records. First, the defendant argues that
records of the victim's PTSD diagnosis might establish that she
suffers from dissociation, which could have caused her to
misperceive the events of the alleged rapes. Second, the
defendant argues that because the PTSD allegedly resulted from
the victim's stepfather once punishing her by locking her out of
the house overnight, records of the victim's PTSD diagnosis
might establish that the victim has a particularly strong motive
to lie to avoid punishment by her current guardians. Third, the
defendant argues that records from the victim's appointment with
her therapist after the alleged rapes might contain either an
inconsistent account or meaningful silence.
17
As to the first claimed justification, the defendant has
not provided any evidence that PTSD can cause a person to
misperceive events that bear no relationship to the traumatic
event that caused the PTSD. The defendant's expert does not
make such a statement and the source cited by the defendant's
expert does not support it. See Feeny & Danielson, PTSD,
Dissociation, and Treatment, in Advances in the Treatment of
Posttraumatic Stress Disorder: Cognitive-Behavioral
Perspectives 223, 225-227 (Steven Taylor ed., 2004) (defining
"dissociation").
As to the second, the defendant has provided no evidence
that people who suffer from PTSD have a stronger motive to lie
to avoid trauma-related events such as punishment than do other
people who do not suffer from PTSD. The affidavit of the
defendant's expert does not support this proposition.
Finally, as to the third asserted basis for the relevance
of the requested material, even assuming that the primary care
provider whose records the defendant sought would for some
reason have information in her records about statements the
victim made to her counsellor, there is no evidence the victim
ever even spoke to her counsellor about the alleged rape. There
is only a note in the letter to the victim's primary care
provider stating that the doctor who wrote the letter urged the
victim to speak to her counsellor about the incident. This
18
final basis for the request thus is "'entirely speculative,'
[and the defendant has] failed to 'provide a factual basis for
demonstrating that the privileged materials . . . were relevant
and material to any issue in the case.'" Sealy, 467 Mass. at
628, quoting from Commonwealth v. Bourgeois, 68 Mass. App. Ct.
433, 437 (2007).
ii. The 504(b) records. The defendant's argument for the
relevance of the 504 plan records held by the victim's school is
also, as the first motion judge concluded, unavailing. The
defendant claims that these records would contain evidence of
the victim's "mental state at the time of the incident." The
defendant's motion, however, requested "[r]ecords relating to
the alleged victim's '504 Plan' including basis of enrollment."
The defendant offered no reason to believe that records relating
to the victim's initial enrollment in the 504 plan would be
relevant to her mental state at the time of the alleged rape.
The defendant also offered no evidence that the school's records
contain any information other than the bare fact that the victim
suffers from PTSD. In the absence of a proffer of any basis for
believing the records contained the information described, the
defendant's claim of relevance with respect to the 504 plan
records is speculative as well.
Because we affirm the denial of this Lampron motion on
relevance grounds, the defendant's argument that the victim
19
waived her privilege over her medical records is moot. As
stated above, Lampron requires that the requested documents be
relevant whether or not they are privileged. 441 Mass. at 269.
iii. The school records. Lastly, as to the requests for
all the victim's high school records, we also agree with both
motion judges that the defendant failed to make a showing of
relevance sufficient to warrant the issuance of a third-party
subpoena.
The defendant argues that the requested school records were
relevant because the victim "must have provided some explanation
to the school for her absence" while she was with the defendant.
As in Sealy, this claim of relevance is utterly speculative, and
is therefore insufficient. See Sealy, 467 Mass. at 628. And,
as above, the defendant's argument that the victim waived the
privilege as to her school records is moot.
c. The defendant's Franks motion. Next, the defendant
argues that the first motion judge should have allowed his
motion for a hearing pursuant to Franks v. Delaware, 438 U.S.
154 (1978). A search of the defendant's home was conducted
pursuant to a search warrant after the victim told a police
officer that while she was at the defendant's house he had raped
her on two separate occasions, that the defendant had used a
condom on one of those two occasions, and that the defendant had
stolen several of her possessions. The defendant argues that
20
the magistrate who issued the warrant was not provided with
additional information -- specifically, that the victim had a
history of running away from the house where she lived with her
grandparents, that she had tricked her grandmother in order to
get out of the house and into the car with the defendant, that
she had stolen money from her grandmother before leaving, that
during her initial interview with the police she denied any
sexual relationship between her and the defendant, that the
officer who conducted the initial interview said that he did not
think she was being truthful, and that she first made the
allegation of rape to the police four days after that initial
interview. He argues that he has made a "substantial
preliminary showing" that the affidavit accompanying the
application for the search warrant "contained one or more
[omissions of fact] made intentionally or with reckless
disregard for the truth" that were material to the magistrate's
finding of probable cause, see Commonwealth v. Ramos, 72 Mass.
App. Ct. 773, 777 (2008), and that therefore the motion judge
should have held a hearing under Franks.
We disagree. Because this additional information would not
have eliminated probable cause, there was no need for such a
hearing. Cf. Commonwealth v. Amral, 407 Mass. 511, 519-520
(1990), quoting from Franks, 438 U.S. at 155-156 (where the
affidavit supporting the warrant application allegedly contained
21
false statements, suppression would be the remedy only if "with
the affidavit's false material set to one side, the affidavit's
remaining content is insufficient to establish probable cause").
d. The defendant's DNA expert. The defendant argues next
that his DNA expert should have been permitted to criticize the
thoroughness of the investigation done in this case by
testifying that bed sheets taken from the defendant's house
during the search should have been tested for DNA.
The expert, however, held expertise in observing DNA
testing in laboratories, ensuring that the testing was
exhaustive, and advising defense attorneys as to whether the
testing was performed in accordance with the laboratory's
procedures and protocols. During both pretrial proceedings and
at trial, defense counsel acknowledged that the witness's
expertise was so limited, stating that he is "not a
criminologist," and agreeing with the judge that the expert was
not involved in the collection of DNA evidence, but instead was
an expert in analyzing samples that somebody else had collected.
Expert witnesses are not permitted to testify to matters
outside their area of competence. Thus, the trial judge did not
abuse his discretion in preventing the expert from criticizing
the thoroughness of the Commonwealth's investigation. See
Commonwealth v. Frangipane, 433 Mass. 527, 533 (2001).
22
e. The prosecutor's closing statement. The defendant
argues that the prosecutor misstated the evidence during her
closing statement. During the closing, the prosecutor described
the police search of the defendant's bedroom, saying that "in
the top bureau drawer right where [the victim] said the
defendant had reached to get a condom they found a big bag of
condoms and the ripped opened wrapper." The defendant argues
that the use of the definite article -- "the ripped opened
wrapper" -- implied that there was evidence that the condom
wrapper found had contained the condom used with the victim,
when, in fact, the prosecutor's statement required drawing an
inference from the evidence. The defendant objected below. The
trial judge agreed to instruct the jury that final arguments
"are just that, arguments," and that the jurors' recollection of
the facts controls, but said that he did not hear any improper
argument.
We see no error. There was evidence that the defendant had
used a condom with the victim and that he had taken the condom
out of a bureau drawer where police found a condom wrapper
during the search of the defendant's room five days later. The
prosecutor's closing is best read permissibly to marshal the
evidence and to draw reasonable inferences therefrom in an
attempt to make a case to the jury. Commonwealth v. Hart, 428
23
Mass. 614, 616 (1999) (prosecutor's closing argument may contain
"inference[s] from the evidence").
f. The defendant's proposed voir dire questions. Finally,
the defendant proposed a series of voir dire questions designed,
he argues, to assess prospective jurors' racial prejudice. The
defendant is correct that in cases involving interracial rape,
"individual questioning with respect to racial prejudice, on
request, is mandatory." See Commonwealth v. Lopes, 440 Mass.
731, 737 (2004). The precise questions to be asked at voir
dire, however, are within the sound discretion of the trial
judge. See Commonwealth v. Pope, 392 Mass. 493, 505 (1984).
Here, the judge asked each prospective juror a question in
roughly the form: "The complaining witness in this case is
white, the defendant is black. Would those facts affect you in
any way in listening to this case?" He also told defense
counsel before the voir dire began that "if you have some
feeling about a particular juror and you'd like me to ask some
further questions of a particular juror, I will at least
entertain that and probably do that under the circumstances."
We think that this was an appropriate and adequate mechanism for
addressing the issue raised by the defendant, and we see no
abuse of discretion in the judge's refusal to routinely ask
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every prospective juror the additional questions propounded by
the defendant.
Judgments affirmed.