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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v.
Present: Cypher, Kantrowitz, & Cowin, JJ.
A pretrial motion to suppress evidence was heard by
Richard E. Welch, III, J., and the cases were tried before him.
Richard J. Fallon for the defendant.
Gregory I. Massing, Assistant District Attorney, for the Commonwealth.
CYPHER, J.
A Superior Court jury convicted the defendant,
Richard Aviles, of four counts of rape of a child under sixteen, in violation
of G. L. c. 265, § 23, and one count of indecent assault and
battery on a child under the age of fourteen, in violation of G. L.
c. 265, § 13B. The defendant appeals, claiming error in: (1) the
denial of his motion to suppress evidence; (2) the admission of a sanitized
version of the victim's medical records; (3) the denial of his motion for a
required finding of not guilty on one of the counts of rape; and (4) the
prosecutor's closing argument.
1. Factual background. The jury could have found the following facts. The
defendant, a police officer, lived with his wife and his wife's daughter,
Debbie.[1] The defendant began to
sexually abuse Debbie in the summer of 1997, when she was twelve.
The defendant had sex with Debbie before or after school, and sometimes twice a
day, up to four times a week. Each time, the defendant would ejaculate on her
stomach and then wipe it off with either a towel or his undershirt. The
defendant had tried to put his penis in her mouth, but she would clench her
teeth. The defendant touched her vaginal area at least eight times with his
fingers. Debbie testified that she had not had sex with anyone other than the
defendant. Debbie kept the defendant's conduct a secret because she was afraid
of breaking up her mother's marriage and she thought that no one would believe
her instead of a police officer. She was also afraid of the defendant, who kept
a gun in the house.[2]
Debbie testified that on
Concerned because she had noticed changes in Debbie's behavior, Debbie's mother
sought family counseling from their pastor. On
A gynecological examination revealed that Debbie had "remnant hymenal tissue" consistent with repeated penetration
by an adult penis.
State police Trooper Downsbrough
conducted an investigation on
Debbie, her mother, and the defendant submitted blood samples. DNA testing on
the defendant's T-shirt confirmed the presence of the defendant's seminal
fluid, and human blood on the sleeve and neckband. Debbie's mother was excluded
by the testing as a possible source of the blood on the T-shirt, but the
defendant and Debbie could not be excluded as a source of the blood.
In addition to the pastor, Debbie's best friend[3]
and Trooper Downsbrough testified as fresh complaint
witnesses.
The defendant testified on his own behalf and denied having any sexual contact
with Debbie. The defendant claimed that Debbie often wore his undershirts and that
he sometimes would puncture pimples on her back, leaving pus and blood on his
shirts. The defendant could not explain how his sperm got on the undershirt.
The defense also endeavored to show that Debbie was fabricating her claims
because of the defendant's role in disciplining her at home.
2. Discussion. a. The motion to suppress the
DNA test results on the defendant's T-shirt. When reviewing a judge's action on
a motion to suppress, we accept the subsidiary findings of fact absent clear
error. "A judge's legal conclusion, however 'is a matter for review . . . particularly where the
conclusion is of constitutional dimensions.' Commonwealth v.
Jones, 375
The motion judge found that the defendant's wife consented to the search of her
home and that she produced a laundry hamper containing the defendant's soiled
clothing and towels upon learning of Debbie's allegation that the defendant had
twice recently ejaculated on her stomach and had wiped off his semen with a
towel on one occasion and with a white T-shirt on the other. The judge found
that it was entirely the defendant's wife's idea to show the police clothing
from this hamper. The judge concluded that because the wife turned the
defendant's clothing over to the police completely of her own volition, there
was no State action and therefore no search or seizure within the meaning of
art. 14 of the Declaration of Rights of the
The defendant does not challenge the judge's
subsidiary findings of fact. The defendant admits that his wife had the
authority to consent to the search of her home and to the seizure of the
defendant's T-shirt. See United States v. Matlock, 415 U.S. 164, 169-171
(1974); Commonwealth v. Martin, 358 Mass. 282, 288-290 (1970); Commonwealth v. Deeran, 364 Mass. 193, 195 (1973). The defendant also does
not challenge the ability of the police to test the T-shirt for seminal fluid.[4]
Instead, he argues that his wife's consent cannot be extended to authorize the
testing of the T-shirt for genetic material (and that another warrant was thus
required) because, in short, a person cannot consent to the testing of someone
else's genetic material.[5] For support, the defendant relies on Walter
v. United States, 447 U.S. 649, 651-654 (1980), where the Supreme Court held
that Federal agents acted unconstitutionally when, without a warrant, they
projected obscene films that had been turned over to them by a private third
party who had opened the sealed film cartons. We reject the defendant's
argument. First, Walter was grounded largely in First Amendment protections,
which are not implicated in this case.
b. Medical records. Portions of Debbie's hospital records were admitted over
the defendant's objection and portions were admitted without objection. The
defendant argues that the trial court should not have admitted the portions to
which counsel objected, and that counsel was ineffective for failing to object
to admission of the other portions of the medical records.
The defendant claims that because the records
addressed liability, the records were not admissible under G. L.
c. 233, § 79,[6] which permits
the admission of hospital records concerning treatment and medical history.
The records objected to by defense counsel at
trial contained the following narrative by a treating nurse: "last
The notations included in the records contained the kind of information upon
which hospital personnel would rely in order to make a diagnosis. See
Commonwealth v. Perry, 385 Mass. 639, 642 (1982) ("If the subject matter
of an entry falls within those areas which, under hospital practices, are
regarded as relevant to diagnosis or treatment, it is within the
statute"). The narrative does not contain quotation marks or the word
"alleged"; however, the remarks are easily understood as allegations
of Debbie and not as statements of fact by the treating medical personnel. In
any event, the defendant suffered no prejudice, as the allegations in the
hospital record "added nothing to other evidence presented." Commonwealth v. Gogan, 389
The records not objected to by defense counsel
contained the following references: "14 yo
reports ~18 mo. intermittent sexual assault by step father -- Vaginal
Penetration & attempted anal penetration in past -- Last assault 24 [hours]
ago. Denies oral penetration, physical beating. Confided in
pastor who notified M.D. Pt. denies other sexual partners. Has regular
menses. Today is 1st day of menses." The defendant admits that counsel
intentionally did not object and claims now that the omission constituted
ineffective assistance of counsel.
Defense counsel used the information in the hospital record to illustrate
inconsistencies in Debbie's testimony and previous statements.[8]
Defense counsel's decision was a reasonable tactical choice.
c. Closing argument. The defendant argues that the prosecutor's closing
argument contained three instances of error, which alone or in combination
amounted to reversible prosecutorial misconduct. We examine each in turn.
1. Comment on the defendant's right not to be compelled to
be a witness against
himself. In closing argument, defense counsel referred to the defendant's
explanation that Debbie's blood was on his T-shirt because he sometimes popped
the acne on her back and wiped the blood with his T-shirts. The prosecutor
responded in closing: "What about this other explanation? And just when
you think you've heard everything, ladies and gentlemen, now we have this child
popping -- not her popping her own, but the defendant popping her shoulder acne
and then using his own undershirt to wipe up the blood and pus. Well, again,
what does common sense tell you? They've got to come up with something, I
suppose" (emphasis added). The defendant objected and the judge immediately
instructed the jury that the defendant does not have the burden of proof.
The defendant argues that this comment violated
his right under the Fifth Amendment to the United States Constitution not to be
compelled to testify against himself. In the context of the entire argument, it
is unlikely that the jury understood the comment to be anything more than a
comment on the implausibility of the defense.
2. The burden of proof. Debbie testified that
she had never had sexual intercourse with anyone other than the defendant.
During closing argument, defense counsel attempted to use Debbie's apparent
interest in sex with boys her own age to explain the medical evidence
concerning the condition of her hymen as well as to attack her veracity:
"You know, look at the credibility of [Debbie] about that sex. Look at the
list of her boyfriends, that she acknowledges. Look at
the sex notes, the explicit sex notes. Look at sleeping in Derek Sampson's
bed." In his closing, the prosecutor responded by reminding the jury that
Debbie had testified that she had never had sex with anyone other than the
defendant and by arguing,
"Why should you believe her? Well, as you
heard [defense counsel] ask, they seem to have the name of every, single
boyfriend she ever had. And judging from what you heard, and the tenor and the
tone of this defense, and the attack on that child, and painting her as a bad
kid and a bad girl, don't you think, ladies and gentlemen, that if there was
anything out there, you would have heard it?" (Emphasis added.)
The judge overruled the defendant's objection
but immediately instructed the jury that the defendant did not have the burden of
proof, though the prosecution could comment on the argument of defense counsel
and the defense evidence.
The defendant argues that this comment
improperly shifted the burden of proof to the defendant. The Commonwealth
argues that the comment was merely an attempt to argue that Debbie was
credible, that the defendant's attack on her credibility had failed, and that
he was entitled to point out deficiencies in the defendant's proof. We conclude
that any error did not prejudice the defendant. The judge's prompt instruction,
as well as a thorough final charge on the point, cured any possible prejudice.
3. Plea for sympathy. The defendant claims that the prosecutor improperly
appealed to the jury for sympathy for Debbie when he said:
"Ladies and gentlemen, last January the
13th, [Debbie] told her minister, her pastor, 'I don't want people thinking I'm
a bad girl anymore.'
"Ladies and gentlemen, you have the
opportunity, here, to tell her that she is not, that she was not the bad girl
that this defendant wants you to believe she was."
The judge overruled defense counsel's objection
and the prosecutor continued:
"The evidence is there for you to say that
what was bad, what was shameful, what was criminal, was this man's conduct --
this man's conduct in betraying his wife, his family, and a little girl that
trusted him; this man's conduct in raping her and molesting her, day after day.
"I urge you, ladies and gentlemen, look at
the hard evidence, here, and return the only true verdict based on that
evidence.
"Find this defendant, Richard Aviles,
guilty of all the indictments."
The Commonwealth argues that the comment
constituted a request to the jury to reject the defense strategy to paint
Debbie as a bad girl and that the prosecutor did not appeal to the juror's
emotions or fears and did not ask them to avenge her suffering.
We think the comment was questionable because
of its potential to elicit sympathy for Debbie and to suggest some duty on the
part of the jury to make her feel better. However, the jury likely considered
it to be hyperbole or a rhetorical flourish.
Additionally, the judge instructed the jury not to base the verdict on sympathy
or emotion. In the context of the entire trial, including the opening and
closing arguments, the evidence, and the judge's instructions, it is unlikely
that the comment prejudiced the defendant.
d. Sufficiency of the evidence. The defendant argues that there was
insufficient evidence of digital penetration to convict on the indictment
alleging digital rape. The prosecutor asked Debbie whether the defendant had
ever touched her "vaginal area with anything else, other than his
penis," and Debbie answered that he had touched her with his fingers eight
to ten times. The defendant claims that "vaginal area" was too vague
and does not mean "vagina." Understandably, defense counsel did not
raise this argument below. The argument is without merit. In the light most
favorable to the Commonwealth, and in the context of the entire direct
examination, the jurors could have found, beyond a reasonable doubt, that the
defendant touched Debbie's vagina, vulva, or labia.
Judgments affirmed.
FOOTNOTES:
[1] The child's name is a pseudonym.
[2] In the fall of 1998,
Debbie fought and argued with the defendant. In December of 1998, the defendant
struck Debbie after she swore at him. Debbie ran away and stayed at her friend
Derek's house. The defendant arrived in uniform and locked Debbie in the back
of his cruiser. Debbie also testified that
the defendant had struck her on one other occasion
because she had attempted to go to school without having sex with him.
[3] Debbie's best friend testified that Debbie would
have to go inside the house immediately after school and would not come outside
for thirty to forty-five minutes. The friend would see the defendant leave the
house at the same time. She also stated that Debbie had confided in her about
the defendant's actions and had made her promise that she would not say
anything.
[4] We note that a critical fact about the semen
stain on the defendant's T-shirt is that Debbie knew it would be there.
[5] We observe that the DNA testing here was limited
to identification purposes.
[6] General Laws c. 233, § 79, provides in
relevant part: "Records kept by hospitals . . .
may be admitted by the court, in its discretion, as evidence in the courts of
the commonwealth so far as such records relate to the treatment and medical
history of such cases . . . but nothing therein contained shall
be admissible as evidence which has reference to the question of
liability."
[7] The record in question was otherwise redacted
considerably.
[8] For example, whether there was attempted anal
penetration, when the last incident had occurred, whether there was oral
penetration, and when Debbie was menstruating.