Opinion
No. 12–P–306.
2013-08-14
COMMONWEALTH v. Steven INFANTE.
By the Court (CYPHER, KANTROWITZ & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Steven Infante, appeals from his convictions, by a Superior Court jury in 2010, of three counts of statutory rape and one count of indecent assault and battery of Mary; and one count of indecent assault and battery of Susan.
The names of the victims and the other women who testified at trial are pseudonyms.
During the relevant years from 1991 through 1993, the defendant was a gymnastics coach. He committed the charged crimes in the course of his coaching the victims. Because the statements of fact of both the defendant and the Commonwealth are so lengthy, detailing the pervasive inappropriate atmosphere the defendant created and the illegal conduct the defendant engaged in, we reserve any further reference to them for analysis of the issues raised on appeal, as necessary. The defendant's brief contains four sections of argument. Our analysis combines the fourth with the second and proceeds in three sections as follows.
The defendant testified, admitting he had several sexual relationships with the gymnasts he coached, but he denied he had any sexual relationship with any of them before they were sixteen.
Analysis. 1. Alleged limitation of cross-examination. The defendant asserts that the judge's exclusion of pages of Mary's diary improperly limited his defense and his challenge to Mary's credibility. The defendant sought to show that the diary excerpts would indicate that Mary had other “non-platonic” dating relationships, contrary to her previous denial in cross-examination, and he asserts that the proposed evidence would have shown that he had not had unlimited control over Mary as he claims the Commonwealth theorized. The judge ruled that Mary could be asked whether she had had other dating relationships, and when she denied she did, the judge excluded the evidence, citing the rape shield statute.
The judge did not err. There is no evidence that the defendant's control over Mary or her dating were central issues at the trial. Accordingly, it appears the defendant sought only to impeach Mary on collateral issues with extrinsic evidence. The judge had discretion to exclude such evidence. Commonwealth v. Farley, 443 Mass. 740, 751 (2005) (only in judge's discretion may extrinsic evidence on collateral matter be introduced for impeachment). Moreover, the defendant cites no authority that permits using Mary's diary for impeachment purposes under the rape shield statute. For these reasons and for the additional and detailed reasons and authorities cited in the Commonwealth's brief at pages 26 through 32, we conclude the judge did not err in excluding Mary's diary from evidence.
2. Alleged improper comment on Commonwealth's witnesses. The defendant cites a number of instances in his cross-examination which he asserts show that the prosecutor “repeatedly goaded [him] to comment on the credibility of the women who testified against him.”
“It is a fundamental principle that ‘a witness cannot be asked to assess the credibility of his testimony or that of other witnesses.’ “ Commonwealth v. Triplett, 398 Mass. 561, 567 (1986), quoting from Commonwealth v. Dickinson, 394 Mass. 702, 706 (1985). We examine these incidents, guided by the analysis in Commonwealth v. Alphas, 430 Mass. 8, 17–20 (1999), to determine whether the defendant was questioned improperly.
The prosecutor asked two questions, shown in the margin, that were designed to determine whether a comment was made or an event happened. The defendant's answers did not comment either on his own credibility or that of another witness, and any further questioning ended. There was no error and no prejudice. The questions did not “create an issue of credibility between the defendant and other witnesses.” Commonwealth v. Richenburg, 401 Mass. 663, 673–674 (1988).
The questions and answers were, first:
Q: “So you're saying that's inaccurate what [Mary] has said?”
A: “I'm saying that I did not have a sleep over at DiTullio's house in 1991.”
and:
Q: “What about the comment ‘I can't wait until she gets older?’ “
A: “I'm not familiar with that comment.”
In two other instances, also shown in the margin, the prosecutor asked the defendant whether another witness had lied. The prosecutor's questions in these instances were improper. The harm in asserting that a statement is a lie is that it “implies to the jury that differences in the testimony of the witness and any other witness ‘could only be the result of lying and not because of misrecollection, failure of recollection or other innocent reason.’ “ Commonwealth v. Ward, 15 Mass.App.Ct. 400, 402 (1983), quoting from United States v. Narciso, 446 F.Supp. 252, 321 (E.D.Mich.1977).
The questions were as follows:
Q: “What about the comment ‘It's taking all I can do to keep away from her?’ “
A: “I didn't say that.”
Q: “So [Mary] is lying too?”
A: “Yes, she is.”
and:
Q: “Now, how many of the girls did you tell, ‘don't tell anyone because I will go to jail?’ “
A: “That was never said.”
Q: “So all the girls are lying on that one?”
A: “Absolutely.”
In three other instances, shown in the margin, the defendant commented that the witnesses were confused, or misremembered or misconstrued a conversation. “Any potential harm to the defendant was lessened because he was able to respond without characterizing the other witness's testimony as truthful or false.” Commonwealth v. Alphas, 430 Mass. at 20. Cf. Commonwealth v. MacKenzie, 413 Mass. 498, 515 (1992).
The testimony was as follows, first:
Q: “So [Elizabeth] is lying?”
A: “I don't think [Elizabeth] remembers the conversation correctly.”
second:
Judge: “And the question is did [the defendant] say that [to Nora]?”
A: “I never said that.”
Q: “So she's lying, too?”
A: “Yes, she is.”
Q: “And she said the truth will come out.”
A: “She did not.”
Q: “So, she's lying on that also?”
A: “She's confused about that.”
and third:
Q: “Did you not tell [Karen] ‘I didn't think anything happened with [Mary] when she was 15, but I'm not sure.’ “
A: “No. That's not what we said.”
Q: “So that's a lie, too.”
A: I think it's [a] misconstrued version of the conversation.”
Q: “Did [Karen] lie?”
A: “She did not accurately reflect my words.”
The questioning was no more than vigorous cross-examination and appears more likely “designed to serve the proper purpose of ‘elicit[ing] an explanation of differences from prior testimony,’ “ Commonwealth v. Dickinson, 394 Mass. at 707, quoting from Commonwealth v. Donovan, 17 Mass.App.Ct. 83, 88 (1983), rather than “transform[ing] the interrogation stage of the trial into the phase traditionally reserved for argument and summation.” Commonwealth v. Long, 17 Mass.App.Ct. 707, 709–710 (1984). In any event, although the defendant objected and we review for prejudicial error, the number of improper questions was small in a lengthy cross-examination, and any prejudice to the defendant was insufficient to require a new trial. Compare cases cited in Commonwealth v. Johnson, 412 Mass. 318, 328 (1992) (no reversible error or prejudicial error in a few improper questions).
Finally, we note that in closing argument, the prosecutor, in a few brief sentences, named five witnesses as liars, and concluded: “There's not one of these girls telling the truth according to [the defendant].” The defendant did not object. The jury properly were instructed that they were the sole judges of the credibility of witnesses. Commonwealth v. Dickinson, supra at 706. There was no substantial risk of a miscarriage of justice. Nevertheless, we do not approve of characterizing testimony as lies, and prosecutors are advised to avoid such comment.
The prosecutor named five former gymnasts. The defendant summarized their testimony in his statement of facts. None was a percipient witness to the crimes committed against Susan or Mary. All, many years later, played a part in providing information to team members and authorities that brought about investigations leading to the defendant's indictments.
We also consider the defendant's assertion that during cross-examination of the defendant, the prosecutor posed certain questions in a manner that constituted improper vouching. There is no merit in this assertion. In each of the questions, the prosecutor merely asked the defendant to provide some fact or explain or deny some incident that was in evidence at the trial. It was not prejudicial to ask whether events or matters in prior testimony actually occurred. See Commonwealth v. Wright, 444 Mass. 576, 584 (2005). We discern no statements by the prosecutor that could be viewed as an expression of personal belief.
For these reasons and for the reasons given in further detail in the Commonwealth's brief at pages 33–44, we conclude that a new trial is not warranted.
3. Alleged introduction of evidence to humiliate. The defendant complains that the introduction of (1) a photograph of the defendant in a Halloween costume, (2) the wording on the jacket of a “soft porn” movie, and (3) a statement by the prosecutor in closing argument concerning references at trial that the defendant was called Adonis, were all aimed at humiliating him, were not relevant to the charges against him, and created scorn and revulsion in the jurors. Nothing appears in the record to support the defendant's argument that this evidence was introduced solely to humiliate him.
The photograph was admitted, over the defendant's objection, as relevant to the defendant's relationship with Mary and her family, and was used to establish a time frame for the defendant's conduct before her sixteenth birthday. It was not mentioned in the prosecutor's closing.
Reading of the wording on the movie jacket followed Mary's testimony about the sexual content of the movie that she had been shown one night when she was fourteen and while in the presence of the defendant and other gymnasts. According to Mary's testimony, the movie was shown on a night when the defendant later indecently assaulted her. While the reading of that wording was cumulative, it was struck from evidence by the judge for lack of proof that the movie jacket was the same jacket that was on the movie shown to Mary. The jury were properly instructed that stricken evidence cannot be considered. Finally, the defendant complains that the prosecutor stated in closing: “Once upon a time, I was Adonis, the god of desire. All these women worship me. Whether [they're] the mothers of the gymnasts or the gymnasts themselves.” Given the very considerable evidence of the atmosphere in his gym created by the defendant's attention to female gymnasts, these comments would have been understood by the jury as within the hyperbole permitted in closing argument. Commonwealth v. Anderson, 411 Mass. 279, 287 (1991) (jury have “capacity to discount hyperbole”).
Judgments affirmed.