Opinion
19-P-1197
10-28-2020
COMMONWEALTH v. Philip CLARK.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant, Philip Clark, was convicted of one count of rape, see G. L. c. 265, § 22 (b ), and two counts of assault and battery, see G. L. c. 265, § 13A. On appeal, he argues that (1) the judge erroneously admitted into evidence messages sent via Facebook Messenger between the victim and her friend; (2) the prosecutor's closing argument was improper; (3) the judge erred in denying the defendant an opportunity to rehabilitate his sole witness at trial after the witness was impeached; and (4) the evidence was insufficient to sustain the convictions. We affirm.
As discussed further infra, the defendant was acquitted of one count of rape and one count of assault and battery.
Background. In May 2016, the victim, then seventeen, and the defendant met through a dating website. Soon after, they exchanged cell phone numbers. With the exception of one video call, the two communicated exclusively by text message, messages through the dating website, Facebook Messenger, and Snapchat.
We summarize the evidence in the light most favorable to the Commonwealth, reserving certain details for later discussion. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
On July 15, 2016, the victim and the defendant made plans to meet in person for the first time. The victim made plans to attend a party with the defendant. The victim left her home at approximately 10:00 P . M . and arrived at the address provided by the defendant, which was about forty miles away, around 11:00 P . M .
When the victim arrived, she contacted the defendant, who sent his friend to escort her upstairs to the apartment. The victim and the defendant's friend entered the apartment directly into a bedroom, where the defendant was sitting on a bed. The victim was confused because no one else was present and she expected a party.
For approximately the next hour, the defendant, the victim, and the defendant's friend remained in the bedroom with the exception of three occasions when the defendant's friend left the room. On the first occasion the friend left, the defendant lifted up the victim's dress and commented on her buttocks. The victim asked the defendant to stop.
On the second occasion, the defendant and the victim were seated next to each other on the bed when the friend went into the bathroom for approximately five to ten minutes. The defendant kissed the victim on the neck, pushed the victim on her back, kissed and bit her body, and touched her vagina. The victim felt uncomfortable and asked the defendant to stop a few times.
On the third occasion, the defendant sent a text message to his friend, asking the friend to leave the room so the defendant could "put it in her, bro." The defendant knocked the victim's phone out of her hand and the friend left the bedroom and shut the door.
The defendant proceeded to touch the victim's vagina and breasts. The victim told the defendant to stop throughout the encounter. When he put her hand on his penis she pulled it away, when he attempted to remove her underwear she "a hundred percent told him no," when he then put his fingers in her vagina she asked him to stop, when he put his penis in her vagina she repeatedly told him to stop, and she told the defendant that he was hurting her. The defendant, in turn, repeatedly told the victim to "shut the fuck up," pinned her hands above her head, slapped her face three times, and put his hands around her neck.
At 11:52 P . M ., the defendant sent a text message to his friend indicating, in part, "Dude, I came on her chest. Laughing my ass off. Your turn. You can easily persuade her." The defendant then went into the bathroom and showered. The victim cleaned the defendant's semen off her body both in the bedroom and in the bathroom while the defendant was showering.
At 12:04 A . M ., the victim sent the message "Omfg," which she testified was shorthand for "oh my fucking god," to her friend via Facebook Messenger. When her friend did not immediately respond, the victim said she was going outside to smoke and the defendant's friend asked to join her. The victim left her car keys inside. While outside, the victim received a response from her friend. The victim and her friend exchanged messages until 12:27 A . M ., when the victim's friend called, at the victim's request, pretending to need a ride. After receiving the call from her friend, the victim left the apartment, drove to a police station, and was subsequently brought to the hospital.
After hearing the evidence over the course of three days, the jury convicted the defendant of rape (to wit, penis in vagina), assault and battery (to wit, slap to face), and assault and battery (to wit, hands around throat). The jury acquitted the defendant of separate counts of rape (to wit, finger in vagina) and assault and battery (to wit, slap to face).
Discussion. 1. Admissibility of messages between victim and her friend. The defendant argues that the judge erred in admitting the content of the messages between the victim and her friend under the excited utterance exception to the hearsay rule. See Mass. G. Evid. § 803(2) (2020). Because the defendant objected to the admission of the messages, we review for prejudicial error. See Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 7 (2019).
A statement is admissible as an excited utterance if "[1] there [was] an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer, and [2] the declarant's statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought." Commonwealth v. Imbert, 479 Mass. 575, 579 (2018), quoting Commonwealth v. Barbosa, 477 Mass. 658, 672 (2017). The "essential issue is whether the statement was made under the stress of an ‘exciting event and before the declarant has had time to contrive or fabricate the remark, and thus ... has sufficient indicia of reliability.’ " Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 421 (2018), quoting Commonwealth v. Baldwin, 476 Mass. 1041, 1042 (2017). Written statements are examined more closely than spoken statements to ensure that they are sufficiently spontaneous to satisfy "heightened indicia of reliability." Commonwealth v. Mulgrave, 472 Mass. 170, 177 (2015).
Relevant factors include "whether the statement was made in the same location as the startling event; the amount of time between the startling event and the making of the statement; and the age, spontaneity, and degree of excitement of the declarant." Wilson, 94 Mass. App. Ct. at 421. Applying these factors to the particular circumstances presented here, we discern no error in the judge's admission of the Facebook messages as excited utterances.
Here, the startling event was the assault, which the victim described in the messages and characterized as "the worst experience of [her] life." See Commonwealth v. King, 436 Mass. 252, 255 (2002) (underlying exciting event may be proved by excited utterance itself). The victim sent the messages close in time to the assault, between twelve and thirty-five minutes after, at a time when she did not know how to extricate herself from the scene. See Commonwealth v. Kastner, 76 Mass. App. Ct. 131, 137 (2010) (sixteen year old victim's statement made no more than twenty minutes after rape admissible as excited utterance); Commonwealth v. Wilcox, 72 Mass. App. Ct. 344, 351 (2008) (victim's statement to emergency room doctor one hour after rape admissible as excited utterance).
The defendant's argument that the Facebook messages were inadmissible prior consistent statements is unavailing. That an excited utterance is consistent with a victim's trial testimony does not render it inadmissible as a matter of law. See Commonwealth v. King, 445 Mass. 217, 241 (2005), cert. denied, 546 U.S. 1216 (2006) (recognizing different foundational requirements to admit sexual assault victim's statement as excited utterance and as prior consistent statement).
The victim's trial testimony and the content of the messages support the conclusion that the victim remained under the stress of the assault when she made the statements. She testified that immediately prior to the rape, she was uncomfortable, scared, and worried, and that she did not know what to expect or how to react. The victim further testified that she felt scared afterwards when she was messaging her friend. The victim's messages reflect that feeling: she was "freaking out," "shaking," wanted to "cry right now," and was "scared to fall asleep." See Mulgrave, 472 Mass. at 179 ("tone and manner of the declarant, as evidenced by the writing itself, supports a determination that this statement was spontaneous").
The victim's use of written communication was reflective of the circumstances and how people her age communicate. See Mulgrave, 472 Mass. at 178 ("For a person proficient in the use of the cellular telephone technology, sending a text message may involve no more effort than verbalizing a thought, feeling, or emotion in response to an event"). She sent the messages when she was still at the scene of the rape, a significant distance from her home, and with her assailant and another man, both of whom she first met in person approximately an hour earlier. She was seventeen and had a license that did not permit her to drive after midnight. The victim relayed the occurrence of the rape, her feelings about her safety, and her desire and plan to safely extricate herself from the apartment. See id. at 179 (text message "related only to the circumstances of the threat to the victim's safety and her reaction [fear] to that threat" admissible as excited utterance). As the victim explained in the messages, she did not want the defendant to know she was upset because she was scared that the defendant would hurt her. Cf. Commonwealth v. DiMonte, 427 Mass. 233, 239 (1998) (writing may be admissible as excited utterance "when a victim is held hostage and is unable to communicate in any way other than writing or when a person's vocalization is impaired").
At trial, defense counsel asserted that the victim's license actually precluded her from driving after 12:30 a . m ., rather than midnight. This does not affect our analysis.
While the defendant points out that several of the Facebook messages discuss the defendant's friend, those messages pertain to the victim's feeling that she was safer with the defendant's friend present.
We recognize that "[a] trial judge's determination that an utterance meets the test of admissibility should be given deference and ‘only in clear cases ... of an improper exercise of discretion should [the judge's] ruling be revised.’ " Barbosa, 477 Mass. at 672, quoting Commonwealth v. McLaughlin, 364 Mass. 211, 223 (1973). In these circumstances, the judge did not abuse his broad discretion in admitting the Facebook messages as excited utterances.
We reject the defendant's argument that the Facebook messages do not qualify as excited utterances because of the victim's actions during the twelve-minute period before she sent the first message. Most notably, the defendant points out that during this time, the victim's cell phone records reflect an outgoing telephone call to her mother, lasting twenty-five seconds, and an incoming telephone call from her mother, lasting seventy-two seconds. The defendant argues these telephone calls gave the victim time and a motive to fabricate the rape allegation. However, the judge was within his discretion to hold otherwise, given the strong nexus between the Facebook messages and the startling event discussed above. The defendant was entitled to, and did, explore this avenue on cross-examination when the victim acknowledged the phone records, but testified that she did not recall speaking to her mother until after she left the apartment.
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2. Prosecutor's closing argument. The defendant next challenges several of the prosecutor's remarks during closing argument as improper. We review these remarks "in light of the ‘entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial.’ " Commonwealth v. Rodriguez, 437 Mass. 554, 565 (2002), quoting Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984).
a. Bolstering victim's credibility. The defendant argues that the prosecutor improperly bolstered the victim's credibility twice by expressing views that the jury could have attributed to her experience as a prosecutor. Because defense counsel objected to both, we review to determine whether the remarks were improper and, if so, whether they were prejudicial. See Commonwealth v. Andre, 484 Mass. 403, 417 (2020).
First, after describing the "pattern of behavior" between the victim and the defendant including their communications prior to meeting in person (supported by their messages admitted into evidence) and the assault itself (supported by the victim's testimony), the prosecutor stated, "I'd suggest that this is a case of what rape so often looks like." Second, after discussing the issue of consent, the prosecutor stated, "Many cases are based in large part or sometimes entirely on the word of another person."
Assuming arguendo that these statements were improper, the judge's forceful instruction following closing arguments cured any prejudice that may have resulted. The judge expressly instructed the jury that "any other cases that may be out there that you may have ... knowledge of in some way are irrelevant .... No other case or imaginary case is of relevance."
b. Victim's inconsistent testimony and defendant's character. The defendant next argues that the prosecutor impermissibly asserted the victim's inconsistent testimony was indicative of her truthfulness and characterized the defendant as disrespectful to women and, therefore, more likely to have committed the charged crimes. Because the defendant did not object to these statements, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Grandison, 433 Mass. 135, 142 (2001).
Where "defense counsel comments on a government witness's credibility during closing argument, it is proper for a prosecutor, ‘within the limits of the evidence,’ to argue why the jury should believe the witness." Sanchez, 96 Mass. App. Ct. at 10, quoting Commonwealth v. Sanders, 451 Mass. 290, 297 (2008). The defendant argued in his closing that the inconsistencies between the victim's grand jury and trial testimony gave a reason not to credit her account of the encounter. The prosecutor then stated, "I'd suggest to you that if [the victim] was lying, things would have been much more in line. She would have sounded like she was following a script." The prosecutor's statements were proper.
The defendant also argues that the prosecutor's closing argument improperly implied that the defendant, because of his disrespectful attitude towards women, was more likely to have committed rape. The prosecutor stated that the defendant had "zero respect" for the victim; "[a]ll he wants to do is sexualize her" and brag about "how he demoralizes her and then treats her." The prosecutor also referred to the defendant's messages to his friend, including his text messages urging his friend to make a move on the victim and explaining, "I just went for it." The prosecutor then stated, "This is not the response of something that was consensual." The prosecutor's statements came after defense counsel described the defendant's text messages as "crude," "demeaning," "disrespectful," and not "how anyone wants ... a woman to be treated ... but not proof of a crime." The closing arguments of the prosecutor and the defense both characterized the defendant as disrespectful; the remainder of the prosecutor's closing argument permissibly asked the jury to draw an inference based on the evidence presented. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005) ("A prosecutor may marshal the evidence in closing argument, and, in doing so, may urge the jury to believe the government witnesses and disbelieve those testifying for the defendant"). Even were we to assume that the prosecutor's statements were improper, the judge's instruction that closing arguments are not evidence cured any prejudice that may have resulted.
c. Standard of proof. The defendant also argues that the prosecutor lowered the Commonwealth's burden by stating that "[i]f you believe [the victim], if you believe her testimony under oath, that evidence is enough." It is true that "where a conviction rests solely on the credibility of a single witness, a reasonable jury must believe that witness's testimony beyond a reasonable doubt ... to find a defendant guilty" (emphasis added). Commonwealth v. Alvarez, 480 Mass. 299, 310 n.4 (2018). However, the prosecutor was not required to reiterate the "beyond a reasonable doubt" standard at that precise moment, particularly where she referenced it two sentences later, and the judge instructed the jury on the appropriate standard.
3. Rehabilitation of defense witness. The defendant next argues that he was deprived of a full and complete defense because the judge precluded defense counsel from rehabilitating the defendant's sole witness, his friend who was present on the evening in question, after the witness was impeached. When asked on cross-examination about the telephone call that the victim received from her friend, the witness testified that he believed it could have been either a "bail out" call or an actual emergency call. The prosecutor then impeached the witness with his prior statement that the telephone call seemed like the former type of call. On redirect, the judge precluded defense counsel from introducing another portion of the same statement wherein the witness explained that the victim might have been trying to remove herself from the situation because she was upset that the defendant "hit it and quit it." Because the claim was preserved, we review for prejudicial error. See Commonwealth v. Carriere, 470 Mass. 1, 7 (2014).
The judge's ruling was proper because the objected-to portion of the statement was "mere opinion or speculation as to another person's state of mind." Commonwealth v. Carver, 33 Mass. App. Ct. 378, 383 (1992). The ruling also did not prejudice the defendant, as it is unclear how the statement would have rehabilitated the witness. Moreover, defense counsel was otherwise free to -- and did -- argue in closing that the defendant's treatment of the victim after sex may have motivated her to fabricate her account of the encounter.
4. Sufficiency of the evidence. The defendant separately argues that the evidence was insufficient to support his convictions because it is clear that the jury credited the victim's Facebook messages over her testimony at trial. Even if the defendant's assertion is correct, "factual inconsistencies in verdicts ‘do not afford a ground for setting aside a conviction as long as the evidence is sufficient to support a conviction on the count on which the guilty verdict was reached.’ " Commonwealth v. Resende, 476 Mass. 141, 147 (2017), quoting Commonwealth v. Pease, 49 Mass. App. Ct. 539, 542 (2000). Here, ample evidence was presented to support the defendant's convictions of rape and assault and battery. While the defendant urges us to conduct a more searching review, we decline to do so.
Judgments affirmed.