Opinion
14-P-1448
10-27-2015
COMMONWEALTH v. JEROME SMITH.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Jerome Smith, was found guilty of multiple charges related to the kidnapping and rape of the victim. The defendant now appeals his convictions, arguing that the trial judge committed reversible error when he limited defense counsel's cross-examination of the victim concerning a possible motive to lie about being raped. Because the defendant was not harmed by the judge's limitation of cross-examination, we affirm.
A nolle prosequi was entered on count 3, one of three separate rape counts. The defendant was convicted of all seven remaining counts.
1. Background. During the trial, defense counsel sought in cross-examination of the victim to ask her whether the police had made her aware that the defendant had told them that she had solicited him for prostitution. The prosecutor preempted the line of questioning with an objection, which was sustained. At sidebar the judge said that defense counsel was attempting to introduce "double layered hearsay" in evidence. The judge also asked "what difference [it would] make" to the defendant's case if the testimony were allowed in. In response, defense counsel argued that the victim's awareness of the allegations against her motivated her to lie about the rape to avoid trouble with the police over her alleged prostitution. The judge again sustained the objection.
The relevant exchange follows:
Defense counsel: "Okay. And at that point you were aware that they had arrested a person?"
Victim: "Yes."
Defense counsel: "Right? And were you aware that the person they'd arrested had spoken to the police?"
Prosecutor: "Objection."
The court: "Sustained."
The sidebar exchange follows:
Defense counsel: "Judge, [the victim] in the interview -- she was interviewed by the Lynn police. She said that -- you know, she gave her version of events, and the Lynn police officers said to her, well, we've arrested someone, he's making certain allegations against you, he's making allegations that this was a situation of prostitution, that doesn't make sense, et cetera, et cetera. And I just want to get out that she was aware that the Lynn police had arrested someone, that he had talked to the police."
The court: "Right. Well, you got that out."
Defense counsel: "That he was making certain allegations against her."
The court: "How do you get that in. First, I think it's double layered hearsay, No. 1. No. 2, what difference does it make? I mean -- "
Defense counsel: "Well, I think it affects, you know, she was just asked questions about, have you ever engaged in prostitution, have you ever done this and have you ever done that. And she does that knowing that that's what this person said to the police was what happened that night."
The court: "I'm going to sustain the objection."
2. Discussion. A. Standard of review. Defense counsel "ma[de] known to the court the action which he desire[d] the court to take" during sidebar, and thus the defendant's rights on appeal were properly preserved. Mass.R.Crim.P. 22, 378 Mass. 892 (1979). See Commonwealth v. Wray, 88 Mass. App. Ct. 403, 405-406 & n.5 (2015). Because the "defendant believes that the judge improperly restrained his cross-examination of a witness, the defendant must demonstrate [on appeal] that the judge abused his discretion and that [the defendant] was prejudiced by such restraint." Commonwealth v. Sealy, 467 Mass. 617, 624 (2014), quoting from Commonwealth v. Barnes, 399 Mass. 385, 393 (1987). We shall assume that in the circumstances here, the harmless beyond a reasonable doubt standard applies. See Commonwealth v. Vardinski, 438 Mass. 444, 452-453 (2003).
B. Analysis of the trial judge's ruling. "Hearsay is an out-of-court statement offered to prove the truth of the matter asserted." Commonwealth v. Silanskas, 433 Mass. 678, 693 (2001), citing Commonwealth v. Magraw, 426 Mass. 589, 593 (1998); Mass. G. Evid. § 801(c) (2015). The evidence here was not being offered for the truth of the matter asserted but to establish the victim's awareness of the defendant's purported allegations against her, which ultimately could have motivated her to lie at trial out of a fear of being prosecuted for alleged prostitution. When evidence is not being introduced for the truth of the matter asserted but merely to prove that a listener was motivated to take action out of awareness of a declarant's statements, then it is not hearsay. See Commonwealth v. Torres, 442 Mass. 554, 575-577 (2004) (testimony that police told defendant that the mother had blamed him for child's death was allowable for nonhearsay purpose of showing defendant's motive to newly accuse mother of abusing the children); 2 McCormick, Evidence § 249, at 191 (7th ed. 2013). Because relevant nonhearsay evidence was excluded by the judge's ruling limiting cross-examination on this point, and because the judge did not exercise his discretion in so limiting the cross-examination, we proceed to determine whether the error committed was harmless beyond a reasonable doubt.
Defense counsel raised the issue of the victim's fear of prosecution during his cross-examination of her:
Defense counsel: "When you encounter the police actually the first thing you said to them was, I didn't do anything, right?"Defense counsel raised this issue again during his closing argument along with the victim's other motives to lie:
Victim: "Right."
Defense counsel: "And again that was based on your concern that they might get the wrong idea?"
Victim: "Yes, because they told me to put my hands up."
Defense counsel: "And did you think they might think that you were having sex outside?"
Victim: "Yes."
Defense counsel: "And you might get into trouble for that, right?"
Victim: "Well, I didn't think I would once I told them what really happened."
Defense counsel: "Now, a fair question to ask is if this didn't happen as [the victim] said, why would she be here? Why would she testify? It's not [the defendant's] requirement to give an explanation. But you heard what [the victim] said when she was testifying. She was supported by Welfare, as was her Housing, and she had a boyfriend that night, a person that's now her husband. And she talked to the police. And when she talked to the police, her version of the events solidified. Think about it. It would be hard to back out of all of that."
We conclude that the defendant was provided with more than sufficient opportunity to prove and argue the victim was not raped but rather was lying to defend herself against charges of prostitution, and that the jury fully understood the defense and rejected it. First, we note that there was evidence that the defendant had consistently claimed that the victim was a prostitute, and he testified to that effect. In addition to the defendant's own testimony, both the officer that arrested him and a woman that the defendant had previously dated testified that the defendant had told them that he had been solicited by a prostitute on the night of the rape.
The jury could have relied upon the following evidence presented at trial in rejecting the prostitution defense and finding the defendant guilty of the several charges against him. The victim testified that on the night of September 29, 2011, while she was walking down Green Street in Lynn to go to a restaurant, the defendant grabbed her from behind. The defendant forced her to go to a more secluded area nearby, a fenced area on the grounds of a rectory. She struggled and pleaded "more than once" with the defendant, "please, I have a son, please don't hurt me." She tried in vain but could not see the defendant's face, and her attempts to turn around to see the defendant were met with force. The defendant touched her "[e]verywhere." The defendant vaginally and anally raped her with his fingers. The defendant pulled down her pants and then pulled down his own. The defendant's attack only relented when the police arrived abruptly, and he fled from the scene.
An eyewitness who lived nearby the scene of the crime testified that on the night of the rape she saw a male on the sidewalk adjacent to the rectory grab a female by the neck. The male "tr[ied] to push the girl to go somewhere, [but] . . . the girl's foot was pushing back." The eyewitness's husband confirmed that he saw one person "push[ing] the other person toward the garage" on the grounds of the rectory.
A hat, later identified as belonging to the defendant, was recovered by the police "near the scene of the crime." When the police arrested the defendant, he showed consciousness of guilt by lying about visible injuries that he had sustained on the night of the rape and then admitted that he had "[c]limbed a fence" and "cut his hands while fleeing from police."
The victim also testified that when the police arrived, her pants were down and she was "told . . . to put [her] hands up," evidencing her concern that they thought she was "doing something" improper. She immediately told them that she "didn't do anything." The defendant also argued that the medical evidence supported consensual sexual activity, not rape. The testimony he relied upon was as follows: When the victim went to the hospital, she was "calm and cooperative," and she "declined" a rape kit. Further, the doctor noted no "abrasions or lacerations" around the victim's anus (where she claimed that she had been digitally penetrated), and the "external exam [was] normal" with no signs of "obvious injury." With a full presentation of the factual evidence supporting the defendant's theory, the jury rejected the defendant's version of events and found him guilty on all the charges that were before them.
Indeed the defendant acknowledges on appeal that at trial he "was able to argue that" the evidence showed that the victim "had an initial motive to tell the police that she had been raped." He asserts that he was only prohibited by the trial judge from offering proof of her motive to "continue to press her allegation of rape after the defendant's arrest." Any evidence of the victim's motive to continue to press her allegation of rape would have been largely redundant with the evidence of her initial motive to do so, which, as the defendant acknowledges, was already on the record. In the instant case, the record thus "sufficiently disclosed the victim's 'state of mind' and provided substantially equal basis (to that which might have been expected upon further inquiry) for a [dubious] charge of fabrication by the victim. The defendant[] ha[s] not shown that [he was] prejudiced by the limitation[] placed by the trial judge." Commonwealth v. Heath, 24 Mass. App. Ct. 437, 444-445 (1987), citing Commonwealth v. Anderson, 3 Mass. App. Ct. 463, 466 (1975), cert. denied, 424 U.S. 926 (1976). We are satisfied that the Commonwealth has shown the harmlessness of the error beyond a reasonable doubt.
Judgments affirmed.
By the Court (Kafker, C.J., Katzmann & Rubin, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 27, 2015.