Commonwealth v. Gautreau

75 N.E.3d 1149 (Table)

COMMONWEALTH

v.Phillip R. GAUTREAU.

15-P-137

Appeals Court of Massachusetts.

Entered: January 25, 2017.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Phillip R. Gautreau, appeals from his convictions of assault with intent to rape and assault and battery. See G. L. c. 265, § 24 ; G. L. c. 265, § 13A.² The defendant asserts that the prosecutor exceeded the bounds of permissible argument in her opening statement and closing argument, and that the jury instructions were inadequate in two respects. We affirm.

1. Opening statement . For the first time on appeal, the defendant contends that the prosecutor overstepped in her opening statement by appealing to the emotions of the jurors. When "the defendant [does] not object to the statements at trial, we review to determine whether any error created a substantial risk of a miscarriage of justice." Commonwealth v. Joyner , 467 Mass. 176, 188 (2014). A substantial risk arises "if the evidence and the case as a whole, Commonwealth v. Gabbidon , 398 Mass. 1, 5 (1986), [leaves the court] with a serious doubt that the defendant['s] guilt ha[s] been fairly adjudicated." Commonwealth v. Amirault , 424 Mass. 618, 646-647 (1997). "Our power to upset a completely adjudicated conviction on this ground is an extraordinary one which should only be exercised in the most unusual circumstances." Id . at 646.

The prosecutor began her opening statement as follows. "I'm going to drive you in the woods, I'm going to rape you, then I'm going to kill you." The prosecutor then vividly described the facts the Commonwealth intended to prove, describing the events of the night from the perspective of the alleged victim, the defendant's girl friend.

"The proper function of an opening is to outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence." Commonwealth v. Staines , 441 Mass. 521, 535 (2004), quoting from Commonwealth v. Croken , 432 Mass. 266, 268 (2000). The opening may have been dramatic, but a dramatic narrative which hews to the evidence is permitted. The prosecutor may state what she "expects to be able to prove or support by evidence." Commonwealth v. Fazio , 375 Mass. 451, 454 (1978). Even if provocative, the opening "statement was otherwise firmly and fairly grounded on what [the prosecutor] reasonably expected to prove, see Commonwealth v. Johnson , 429 Mass. 745, 748 (1999), and did not create a substantial [risk] of a miscarriage of justice." Commonwealth v. Silva , 455 Mass. 503, 514 (2009).

The prosecutor also described the passing motorist who gave the girl friend a ride as "her savior." That characterization may have been better left unsaid. See Commonwealth v. Degro , 432 Mass. 319, 322 n.4 (2000) ("[W]e caution prosecutors in particular, because they deal with subject matter that tends to be emotional, to proceed with caution that their opening statements do not slip into emotionally provocative argument"). Passing on whether the reference to the driver was error, a question we need not reach, there was no substantial risk of a miscarriage of justice. The anticipated evidence at trial was that the driver extricated the victim from a dangerous situation. While the phrase may more appropriately be characterized as argument, it did not misstate the Commonwealth's version of the facts. Furthermore, the judge instructed the jury that opening statements are not evidence. Commonwealth v. Morgan , 449 Mass. 343, 362 (2007).

2. Closing argument . The defendant also claims there were several errors in the prosecutor's closing argument, as to which there was no objection. We review these claims for a substantial risk of a miscarriage of justice. Joyner , 467 Mass. at 188.

Closing arguments are restricted to the evidence and inferences that can be drawn from it. Commonwealth v. Jones , 432 Mass. 623, 628 (2000), citing Commonwealth v. Kozec , 399 Mass. 514, 516-517 (1987). "We consider the remarks in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial." Commonwealth v. Francis , 450 Mass. 132, 140 (2007).

a. Rhetorical questions . The defendant claims that the prosecutor erred by vouching for the credibility of the defendant's girl friend by using burden-shifting rhetorical questions. For example, the prosecutor inquired:

"Do you believe that she just made all that up? That she was just putting on a show because she wanted to make up some story against ... Gautreau, because he wanted her back in the car and didn't want her dancing in the field? Is that someone—do you believe that that's what she was doing that night? ... Is that someone making up a story, or is that someone who's really been hurt, on the side of the road that night?"

Rhetorical questions in closing argument which do not shift the burden of proof to the defendant are permissible. See Commonwealth v. Nelson , 468 Mass. 1, 12-13 (2014). Here, the prosecutor made fair comment on the weight of the evidence, the credibility of the witnesses, and the permissible inferences to be drawn from the evidence. The rhetorical questions were in response to the defendant's closing argument; they were linked to the evidence, contained no injection of personal beliefs, and did not suggest that the defendant should have produced further evidence or testimony. See ibid .; Commonwealth v. Flint , 81 Mass. App. Ct. 794, 807 (2012).

Later in closing argument the prosecutor stated:

"Does that make sense that having not talked about this for months and knowing her purpose of being there for the hearing, she might have left out, oh, we did go back in the car, and there was a search for the keys, as opposed to the other things that were the most important parts of her testimony? It's absolutely reasonable, ladies and gentlemen. And she said, when I asked her, what was your demeanor that day, she said, I was a mess. Is that believable? Something like this happening to her, going months without talking to anybody, coming in at the hearing and testifying to it? Does it make sense she might leave out those little details?"

In his closing, the defendant also raised concerns about the timeline of the night's events, indicating that the time period in question did not align with the prosecution's case. The prosecutor responded:

"Do you think it's reasonable that [the girl friend] might not have the exact time frame, that she might not have been looking at her watch while [Gautreau] was strangling her, while she believed that she was going to die, while he was threatening to kill her and rape her and pulling her pants down and thrusting his penis against her body?"

These arguments were made in response to the defendant's challenge to the girl friend's credibility, and were permissible. Silva , 455 Mass. at 515. Nor did the rhetorical questions shift the burden of proof to the defendant simply by commenting on the evidence supporting the defendant's theory of the defense. See Nelson , 468 Mass. at 12-13.³

b. Appeal to sympathy or passion . The defendant asserts that the prosecutor erred in appealing to the sympathies and inflaming the passions of jurors by (1) disparaging the defense and (2) commenting on the defendant's right to cross-examine witnesses. The defendant points to the prosecutor's statement that defense counsel wanted to "try to get Ms. ... on cross-examination," followed by a list of questions paraphrasing that cross-examination.

The "essence" of cross-examination is to undermine a witness's testimony. Commonwealth v. Grandison , 433 Mass. 135, 143 (2001). We think the jury retained adequate sophistication to understand that both defense counsel and the prosecutor presented their respective cases in a forceful but appropriate manner. See Commonwealth v. Cadet , 473 Mass. 173, 181 (2015). Closing arguments may contain "enthusiastic rhetoric, strong advocacy, and excusable hyperbole." Commonwealth v. Costa , 414 Mass. 618, 629 (1993).

c. Burden shifting . The prosecutor called the defendant's story into doubt by posing the following questions, all of which were based on the defendant's testimony.

"How is he explaining two and a half hours? He wants you to hold that against [the girl friend], but he doesn't want to have to hold that against himself and explain that himself. Did he explain that to you, ladies and gentlemen? Does his story make sense for a time frame?"

This aspect of the prosecutor's closing highlights, but does not cross, the line between permissible use of rhetorical questions and improper burden shifting onto the defendant. See Nelson , 468 Mass. at 12-13. See also Commonwealth v. Johnson , 463 Mass. 95, 112 (2012), quoting from Commonwealth v. Amirault , 404 Mass. 221, 240 (1989) ("[A] ‘prosecutor ... cannot make statements that shift the burden of proof from the Commonwealth to the defendant’ "). Where, as here, the defendant testified, and the closing argument constitutes a comment on the testimony offered, we are persuaded that no error was committed. See, e.g., Commonwealth v. Tu Trinh , 458 Mass. 776, 788 (2011) ("Our scrutiny of the record persuades us the prosecutor's remarks fell into the permissible area of comments highlighting corroboration of credibility and consistency and did not cross over into burden shifting"); Commonwealth v. Lugo , 89 Mass. App. Ct. 229, 235 (2016).

d. Vouching . The defendant also asserts that the prosecutor erred by vouching for the credibility of the defendant's girl friend. We do not consider the statements quoted in part 2.a., supra ("Does that make sense ...") to be either a statement of personal opinion or a form of vouching. See Lugo , supra at 236. The statement was an assertion, made in the context of argument. See generally Cadet , 473 Mass. at 181 (jurors possess adequate sophistication to separate argument from fact).

The defendant also contends that it was improper for the prosecutor to argue that the first complaint witness had no...