Commonwealth v. Seth

COMMONWEALTH

v. WILLIAM SETH.

08-P-1219

Commonwealth Of Massachusetts Appeals Court

Entered: August 24, 2010.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Kantrowitz & Hanlon, JJ.

After trial by jury, the defendant was convicted of kidnapping, G. L. c. 265, § 26; indecent assault and battery on a person over age fourteen, G. L. c. 265, § 13H; assault and battery, G. L. c. 265, § 13A(a); and open and gross lewdness, G. L. c. 272, § 16. The crimes of which the defendant stands convicted took place on January 20, 2003, when the defendant was a driver's education instructor and the minor female victim, then in high school, was his student. On appeal, the defendant claims that the admission in evidence of certain conduct constituting rape, with which he had not been charged, gave rise to a substantial risk of a miscarriage of justice. We affirm.

Background. On March 7, 2005, two weeks before trial was to begin and two years after he had been indicted, the Commonwealth notified the defendant that the victim had augmented her account of what had taken place on January 20, 2003. She now alleged that in addition to the sexual assaults, kidnapping, and lewdness with which he was charged, the defendant had also raped her. The defendant was not subsequently charged with rape and the consequences of the victim's recent disclosure on the conduct of trial were addressed at length by the trial judge in hearings on the parties' motions in limine.

The Commonwealth indicated that it did not intend to raise the rape conduct in its case-in-chief, maintaining that it was not relevant to the crimes charged (a point with which the judge appeared to agree) and, toward that end, wished to use leading questions in its direct examination of the victim in order to assure truthful admissible testimony. The Commonwealth, however, also indicated that it would instead seek to elicit testimony on direct examination about the rape if the defendant planned to raise the subject by cross-examining the victim concerning her recent allegation of rape. Defense counsel opposed the Commonwealth's motion, countering with his own motion that the Commonwealth be precluded from speaking of the alleged rape unless and until he impeached the victim on the recent disclosure, itself a tactical decision on which he wished to reserve decision until the time for cross-examination of the victim.

The trial judge determined that the Commonwealth could not lead the victim on direct examination, that the victim could tell her whole story, that defense counsel could cross-examine the victim on her having given inconsistent versions of the event, that both parties could mention the recent disclosure in their openings, and that the judge would instruct the jury, when the victim reached the rape portion of her testimony, that the defendant had not been indicted for rape.

Defense counsel expressly agreed with this approach and did not thereafter lodge objections in this regard in the four instances where the rape allegation was raised at trial: during the prosecutor's opening, and during the direct examinations of the victim, the victim's former boyfriend, and of a detective to whom the victim had spoken shortly before trial. On appeal, however, the defendant maintains that the admission of the uncharged conduct was irrelevant, prejudicial, and shifted the burden of proof to the defendant.¹

Discussion. Our review is limited to determining whether any asserted error created a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). In the event of error, such a risk is created unless we are persuaded that it did not 'materially influence[]' the guilty verdict. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), citing Commonwealth v. Freeman, supra at 564. In making that determination, we consider (1) the strength of the Commonwealth's case against the defendant without the impermissible evidence, (2) the nature of the error, (3) whether the error is 'sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error, ' Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21, (1986), and (4) whether it can be inferred 'from the record that counsel's failure to object was not simply a reasonable tactical decision.' Ibid. We examine each of the instances in which testimony about the uncharged rape conduct was admitted in evidence.

Direct examination of the victim. In addition to describing the course of events that supported the charged crimes, the victim testified in effect that the defendant penetrated her vagina with his penis. At both the trial court and on appeal, the Commonwealth struggled to characterize this testimony, suggesting that its admissibility turns on its being a prior consistent or inconsistent statement, or perhaps a prior or subsequent bad act, admitted for the purpose of rehabilitating its witness. In opposing the Commonwealth's motion and in support of his own, defense counsel likewise gave the judge little assistance in this regard. For various reasons which we need not detail, the aforesaid categorizations are wide of the mark. Instead, a more apt characterization of the evidence is that it is of a concurrent bad act reasonably viewed as relevant to the victim's recounting of the entire course of events.

The alleged rape took place, not on any prior occasion, but simultaneously with, indeed as the culmination of, the conduct with which the defendant was charged. The uncharged penetration can be viewed as having been 'inextricably intertwined' with these offenses. Commonwealth v. Butler, 62 Mass. App. Ct. 836, 845 (2005), citing Commonwealth v. Bradshaw, 385 Mass. 244, 268-270 (1982).² The judge has broad discretion in determining the relevance of proffered evidence. Commonwealth v. Tobin, 392 Mass. 604, 613 (1984). In the circumstances, given that the uncharged conduct here could reasonably be viewed as relevant to completing 'the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous events, ' Commonwealth v. Butler, supra, we cannot say that the judge abused his discretion in allowing the testimony, to which no objection was made.

The opening statement. It is well-settled that 'a prosecutor... may state anything in [her] opening argument that [she] expects to be able to prove by evidence.' Commonwealth v. Johnson, 429 Mass. 745, 748 (1999), quoting from Commonwealth v. Cohen, 412 Mass. 375, 382 (1992). Here, the judge permitted both parties to mention the rape allegation during opening statements and allowed the prosecutor to introduce evidence of the alleged rape during her case-in-chief. Ibid. Given these rulings, the prosecutor had a good faith basis to believe she would be able to introduce evidence of penetration, and was within her rights to mention that evidence in the opening statement. Moreover, the defendant voiced no objection to the prosecutor's repeated, if arguably unfortunate, characterization of the uncharged conduct--nonconsensual penile-vaginal penetration--as rape.

In analyzing a claim of improper argument, we must view the prosecutor's remarks not only in the light of the entire argument, but also in the light of the judge's instructions to the jury. Commonwealth v. Bourgeois, 391 Mass. 869, 885 (1984). Provided the judge explains to the jury that opening statements are not evidence, counsel may refer to evidence she expects in good faith to put forward at trial. Commonwealth v. Breese, 381 Mass. 13, 15-16, (1980). The trial judge gave a forceful limiting instruction before opening statements, twice impressing on the jury the fact that such statements are not evidence. This same admonition was repeated before the jury retired for deliberations. Given the strength of these instructions, the prosecutor's good faith expectation that the victim's testimony as to nonconsensual penile penetration would be admissible, as well as the absence of any defense objection, we discern no error in the references made to the uncharged conduct in the Commonwealth's opening statement.

The boyfriend's testimony. The uncharged conduct also came up in the testimony of the victim's former boyfriend. Without discussing its contents, he testified that he had a conversation with the victim 'about a month' before the trial, and that he brought 'information' from that conversation to the attention of the district attorney. Defense counsel cross-examined him on this point, stating: '[T]he story that [victim] is telling you today is different from the story she told you back in January of 2003; isn't it?' The boyfriend flatly denied that this was the case. The defense also highlighted the time that had elapsed since the victim's allegations, noting that the boyfriend had been 'waiting for this' for 'two years now.' While counsel did not probe the issue, the intended effect was clearly to insinuate that both the boyfriend and the victim had had ample time to change their stories during those two years.

In an effort to rehabilitate the boyfriend's credibility on redirect, the prosecutor asked, '[W]hat do you mean when you say you've been waiting for this?' In reply, the boyfriend described a telephone conversation in which he asked...