MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, James Clarke, appeals from his convictions by jury of two counts of aggravated rape and related charges
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after a night of drinking in a bar with a summer intern from his office ended in sexual behavior that the victim said was unwanted and the defendant maintained was consensual. The defendant assigns error to two rulings by the trial judge: (1) the refusal to give a jury instruction on consent as a defense, and (2) the admission of evidence that the defendant refused a police request to record his interview. The defendant also appeals from the conviction based on what he sees as a pattern of deliberate misconduct by the prosecutor. We affirm.
1. Background. We summarize the facts as the jury could have found them, reserving certain facts for later discussion. The defendant and the victim, a twenty-one year old college intern, went together to the Kinsale Irish Pub and Restaurant in the early afternoon on July 26, 2017, the last day of the victims internship. The defendant worked as a criminal investigator for the Internal Revenue Service (IRS) in the John F. Kennedy building nearby. The defendant wore his service weapon in a holster on his right hip. Over the course of approximately six hours, the defendant and the victim sat at the bar, ordering multiple rounds of drinks. The victim, who weighed 120 pounds, had five or six mixed drinks. The defendant and the victim competed together in a trivia game run by the bar hostess.
By the time she left the bar, the victim described herself as “drunk”; she was not able to walk straight and could not remember parts of the night. She told the defendant that she planned to get on the T at Government Center, across the street, but he insisted on driving her to South Station. Eventually, she acquiesced. Together, the defendant and the victim went into a nearby parking garage and got into the front seat of his car, which had heavily tinted windows. The defendant initiated a conversation about being handcuffed. He then handcuffed the victim tightly behind her back in a way that was extremely painful. While the victim was handcuffed, the defendant pulled her hair back so that she was facing the roof of the car, drew his gun, and stuck it in the victims mouth, making her gasp for air. While the victim remained handcuffed, the defendant then put his hand inside the victims shirt and bra and touched her breast; slapped her in her face with her flip-flop, with his hand, and with his gun; kissed her lips and neck; licked her stomach; choked her; and pulled down her pants and underwear, penetrating her vaginally and anally with his fingers. By the time the defendant took the gun out of her mouth, the victim was crying, hiding her face by looking away from him and toward the car window. He penetrated her mouth two more times with the gun.
Throughout, the defendant called the victim names like “dirty slut” and “whore,” and asked her whether she liked what he was doing. Out of fear, she repeatedly said yes. Eventually, the defendant started the car and drove the victim to South Station, where he again pulled her by the hair, this time forcing her mouth onto his penis. After the defendant released her head, the victim got out of the car and walked to South Station, sobbing. After calling a friend, she called 911 and reported the assault.
2. Defendants requested instruction on consent. Because consent was at the heart of the defense, we begin with the defendants argument that the judge improperly refused to instruct the jury to consider whether the defendant reasonably and in good faith believed that the victim consented to sexual conduct, sometimes called “mistake of fact as to consent.” Commonwealth v. Kennedy, 478 Mass. 804, 808 (2018). See id. at 809-811 (discussing jury instruction).
a. Standard of review. As the defendant timely objected, we review any error under the prejudicial error standard. Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). “This requires a two-part analysis: (1) was there error; and (2) if so, was that error prejudicial.” Id. “An error is not prejudicial if it ‘did not influence the jury, or had but very slight effect.’ ” Id., quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
b. Analysis. The defendant requested that the trial judge instruct the jury, “If from all the evidence you have a reasonable doubt whether the defendant reasonably and in good faith believed that [the victim] consented to engage in the sexual conduct alleged in any indictment, you must acquit him on that indictment.” At the charge conference, counsel further explained, “I want to be able to tell the jury in my closing that if the force that he used in connection with this incident was forced [sic] that he asked her if he could use, and she said yes, even though she was not really consenting, then he didnt compel her by force, or something along those lines.”
In response to this argument, the judge struck a portion of the proposed instruction that referred to “restraint.” After further discussion, the judge modified the proposed instruction to, “The second element the Commonwealth must prove beyond a reasonable doubt is that [the defendant] compelled [the victim] to ․ submit to sexual intercourse by force or threat of bodily injury and against her will.”
The judge correctly instructed the jury. “Because G. L. c. 265, § 22, does not require proof of a defendants knowledge of the victims lack of consent or intent to engage in nonconsensual intercourse as a material element of the offense, a mistake as to that consent cannot, therefore, negate a mental state required for commission of the prohibited conduct. Any perception (reasonable, honest, or otherwise) of the defendant as to the victims consent is consequently not relevant to a rape prosecution.” Commonwealth v. Lopez, 433 Mass. 722, 727-728 (2001). “[P]roof that a defendant intended sexual intercourse by force coupled with proof that the victim did not in fact consent is sufficient to maintain a conviction.” Id. at 728. The limited exception recognized in Commonwealth v. Blache, 450 Mass. 583, 599 (2008), does not apply to this case. There was no error.
3. The defendants refusal to allow his police interview to be recorded. The day after the rape, the defendant went to the Boston Police Department, waived his Miranda rights, and agreed to be interviewed. The defendant declined the detectives’ request to record his interview, a fact that was introduced at trial over counsels objection. The defendant maintains that his refusal was “testimonial in nature” and its admission was a violation of his rights under art. 12 of the Declaration of Rights. We review for prejudicial error. See Flebotte, 417 Mass. at 353.
The defendants argument misses the mark. While a defendants refusal to comply with a law enforcement officers request may fall within art. 12s privilege against self-incrimination, see, e.g., Commonwealth v. Conkey, 430 Mass. 139, 143 (1999); Commonwealth v. McGrail, 419 Mass. 774, 777 (1995), disapproved on other grounds, Commonwealth v. Blais, 428 Mass. 294, 299 n.3 (1998), the privilege protects “only against the compulsion of communications or testimony.” McGrail, supra at 777. Although certain actions have been deemed “testimonial” for art. 12 purposes, see Conkey, supra at 141 (collecting cases), a defendants refusal to record a Miranda-waived interview is not among them.
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Here, the judge admitted evidence of the defendants refusal to permit police to record his interview only after his counsel asked him, “did [the Boston Police] take a statement from you?” and “did you answer their questions?”, to which the defendant responded affirmatively. This testimony was meant to show that the defendant cooperated with the Boston Police, which allowed the prosecutor an opportunity to challenge this evidence of cooperation. See Mass. G. Evid. § 511(a)(2)(A) (2021) (evidence of a persons refusal to provide real or physical evidence is not admissible except to challenge evidence of cooperation elicited by the defendant). Its admission was not error.
4. Prosecutorial misconduct. The defendant accuses the prosecutor of “a veritable smorgasbord of misconduct from the beginning of the trial through the end” in an effort to make the jury “loathe the defendant” and convict him based on emotion, rather than based on evidence. See Commonwealth v. Peno, 485 Mass. 378, 397 (2020) (“prosecutors have ‘a particular obligation’ to argue in a manner that ‘inspires confidence that the verdict was reached based on the evidence rather than sympathy for the victim’ ”), quoting Commonwealth v. Santiago, 425 Mass. 491, 494 (1997).
a. Standards of review. The defendant claims a mix of preserved and unpreserved errors by the prosecutor. Where the defendant timely objected, we review any error under the prejudicial error standard. See Flebotte, 417 Mass. at 353. For unpreserved errors, we ask, first, whether there was an error and, if so, whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. AdonSoto, 475 Mass. 497, 504 (2016).
“In determining whether a new trial is required because of errors at trial, we consider whether defense counsel seasonably objected to the arguments at trial ․ whether the judges instructions mitigated the error ․ whether the errors in the arguments went to the heart of the issues at trial or concerned collateral matters ․ whether the jury would be able to sort out the excessive claims made by the prosecutor ․ and whether the Commonwealths case was so overwhelming that the errors did not prejudice the defendant.” Commonwealth v. Niemic, 483 Mass. 571, 595 (2019) (Niemic II), quoting Commonwealth v. Maynard, 436 Mass. 558, 570 (2002). “[T]he cumulative effect of all the errors must be considered in the context of the arguments and the case as a whole.” Niemic II, supra, quoting Commonwealth v. Niemic, 472 Mass. 665, 673 (2015). “Once a properly raised objection to a prosecutors argument is found to be valid, the entire record, including the balance of the prosecutors argument, becomes relevant in determining whether the error was prejudicial to the point of requiring a reversal of the conviction.” Niemic II, supra at 595-596, quoting Commonwealth v. Kozec, 399 Mass. 514, 523 (1987).
b. Opening statement, cross-examination. The defendant challenges two aspects of the opening statement. First, he claims error in the prosecutors focus on the names (“dirty bitch,” and “filthy slut”) that the defendant called the victim during the assault. Second, the defendant challenges the statement that he was “cheating on his wife and three kids in Newton” on the night of the assault. Neither was error, as both statements were supported by admissible evidence and were accurate portrayals of what the jury would hear at trial. See Commonwealth v. Morgan, 449 Mass. 343, 360 (2007).
The defendant also claims error in two particular aspects of the prosecutors cross-examination: first, that the prosecutor inappropriately “demoniz[ed]” the defendant by questioning him about the names he called the victim during the assault. This objection was not preserved, and we find no error. The questions were supported by admissible evidence and reinforced the Commonwealths position that the assault was degrading and forceful in nature. See Commonwealth v. McCourt, 438 Mass. 486, 495 (2003) (“rape is a crime involving not simply sex but violence and domination calculated to humiliate, injure, and degrade [quotations omitted]”). Particularly where the defendant testified, on direct examination, that he used the names “in a sexually complementary [sic] way,” it was for the jury to assess the meaning of this name calling.
Second, the defendant takes issue with the prosecutors asking whether the defendant knew that that it was particularly disrespectful, in the victims culture, to throw a sandal or shoe at someone. This objection was preserved, so we apply the prejudicial error standard. The judge allowed the objection, and the prosecutor moved on. The jury are presumed to follow the judges instructions and to disregard questions to which an objection was sustained. See Commonwealth v. Watkins, 425 Mass. 830, 840 (1997), citing Commonwealth v. Albert, 391 Mass. 853, 859 (1984) (“We presume that a jury follow all instructions given to it”). Furthermore, the defendant answered “no,” and the issue was not raised again. We discern no prejudicial error.
c. Ammie Rogerss testimony. The defendant sees continued evidence of overreach in the prosecutors questioning of Ammie Rogers, the hostess at the bar where he and the victim drank for several hours. Before trial, the judge limited her testimony, ruling that Rogers could not (i) describe the defendants demeanor as “aggressive,” (ii) say that she “found it difficult to keep her personal space and told him she was dating someone,” (iii) “say he engaged in aggressive behavior,” or (iv) “say she kept the microphone in her hand in case she had to call for help.” The judge specifically alerted the prosecutor that “care must be taken with this witness” and allowed the prosecutor “some ․ greater leeway” to ask leading questions “in order to try and constrain a witness that seems ready to offer opinion testimony that ought not come in.” The prosecutor responded, “I got it.”
Despite this pretrial ruling, the prosecutor asked open-ended questions that resulted in Rogers testifying that the defendant was “getting very close to [her],” asked her “are you single?”, and otherwise was acting “typical[ly] -- you know, let[ting] me know that hes interested.” This drew an objection and sidebar, at which both defense counsel and the judge noted that these topics were “specifically excluded.” Defense counsel moved to strike the response, and the judge informed the jury to disregard the testimony. The prosecutor then overstepped again, asking about the defendants tone of voice, to another sustained objection. The prosecutor continued his forays over the lines drawn by the judge, including asking questions about Rogerss handling of the microphone, and about whether she had a boyfriend, that resulted in testimony the Commonwealth properly concedes was inadmissible. At the end of this examination, the defendant moved for a mistrial. The judge denied the motion.
The prosecutors behavior displays a marked disregard for the trial judges pretrial evidentiary ruling. Again and again, the prosecutor was admonished to stay away from excluded subjects, and again and again, he asked questions that called for excluded answers. This questioning, and the responses it elicited, were error. They focused the jury on material that the judge had excluded and -- by repeatedly venturing into forbidden territory -- signaled to the jury that something important about the defendants interaction with Rogers was being kept from them.
We do not condone such practice. However, in this case, because the questions did not go to the central dispute in the case, there was ample evidence of guilt, and the judge sustained the objections that were made -- including giving a contemporaneous curative instruction to ignore the testimony that the defendant was flirting with Rogers -- we discern no prejudice. See Watkins, 425 Mass. at 840; Commonwealth v. Flanagan, 20 Mass. App. Ct. 472, 478 (1985).
d. Closing argument. Finally, the defendant argues, the prosecutor, in closing, committed a number of errors that, taken collectively, resulted in a denial of his State and Federal due process rights. We assess the defendants claims of improper (i) characterizations; (ii) emotional appeals to the jury; and (iii) comments regarding his state of mind. If we find prosecutorial misconduct, we go on to consider whether one or more of these improprieties, or a combination of them, warrant a new trial. Niemic II, 483 Mass. at 595. We find no such misconduct here.
i. Improper characterizations. The prosecutor, the defendant maintains, improperly characterized the defense case by (1) arguing that “the defense in this case that came from both the lawyer and the perpetrator is that [the victim] is in fact dirty, a bitch, a slut and ․ she is not only a slut, but shes a lesbian slut”; (2) calling the defenses argument “offensive,” “implausible”, and “improper”; and (3) “lumping” defense counsel and the defendant together by suggesting that the defense was a joint undertaking by the two of them. The second issue was preserved for review.
First, while potentially unnecessary and offensive, the prosecutors use of the objected-to terms and reference to the victims sexual orientation were grounded in evidence and were not error that engendered a substantial risk of a miscarriage of justice. There was evidence that arguably supported these inferences. The defendant testified that he called the victim “dirty” as a compliment to her, and defense counsel tried to elicit testimony that the victim had been in a romantic relationship with another woman. A prosecutor may argue reasonable inferences to be drawn from the evidence. See Commonwealth v. Fernandes, 478 Mass. 725, 741 (2018), quoting Kozec, 399 Mass. at 516 (“a prosecutor may argue ‘forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence’ ”).
Next, we review the prosecutors criticism of the defense argument, and his implication that the defendant and his counsel were conspiring to tarnish the victim and mount an incredible defense, for prejudicial error.
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Flebotte, 417 Mass. at 353. Attacks on defense counsel can “distract[ ] the jury from its proper role.” Commonwealth v. Awad, 47 Mass. App. Ct. 139, 142 (1999). Here, the prosecutor told the jury, “the defense in this case that came from both the lawyer and the perpetrator is that [the victim] is in fact dirty, a bitch, a slut and liked pain, and that she wanted it”; that, “according to both attorney and perpetrator she just so desperately wanted him”; and that, “at least by testifying, the defendant didnt leave [defense counsel] out there all by himself trying to propound this offensive, implausible story.” These remarks drew an objection and led defense counsel to move for a mistrial. The trial judge denied the motion and later instructed the jury, “I should also point out that lawyers are human beings, and some time they can get over enthusiastic when making their closing arguments. Comments about whether one side or the other sides interpretation is absurd is probably not the best way to describe it.” In light of the weight of the evidence and the passing nature of the remarks, and the fact that the arguments were grounded in evidence, this curative instruction was adequate to mitigate any ill effects of the ill-considered (and disfavored) disparagement of defense counsel for zealously performing his role. See Commonwealth v. Daley, 439 Mass. 558, 566 (2003); Watkins, 425 Mass. at 840.
ii. Emotional appeals to jury. The defendant also claims error in the prosecutors appeals to sympathy for the victim, including his statements that the rape was “most[ ] likely the worst moment of [her] life,” his noting that she had a “difficult time talking about it,” and his describing the recording of her last minutes in the car with the defendant and their aftermath as “humiliating.” A prosecutor may not “improperly appeal[ ] to the jurys sympathy for the victim in a way” that may sweep “the jurors beyond a fair and calm consideration of the evidence.” Niemic II, 483 Mass. at 598, quoting Santiago, 425 Mass. at 493-494.
Here, the prosecutors statements were responsive, made after the defense, in closing, suggested that when the victim “cried and cried and cried on the witness stand ․ it was an act.” And, in the midst of noting how traumatic the encounter was for the victim and reminding the jury that she had cried while testifying, the prosecutor noted, “I dont say any of this to generate sympathy for [the victim] because she had to come in and testify and have a difficult time talking about it. First of all, thats not allowed. You cant base your verdict on sympathy for anybody, defendant, victim, anyone.” The trial judge later instructed the jury, “Neither emotion, or sympathy, nor passion, or prejudice have a place in your deliberations.” On balance, under these circumstances, where the prosecutor was responding to an argument by defense counsel, where the judge instructed the jury not to be swayed by appeals to emotion, and where the prosecutor explicitly disclaimed an appeal to the jurys sympathy, the challenged statements did not give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Casbohm, 94 Mass. App. Ct. 613, 623 (2018).
iii. Comments on the defendants state of mind. The defendants last two contentions about the closing argument are, first, that the prosecutors reference to Rogerss testimony as “speak[ing] volumes about the defendants state of mind” was error. This statement drew no objection, and was grounded in Rogerss testimony about the defendants behavior in the bar; the prosecutor asked the jury to make a permissible inference based on that testimony. Kozec, 399 Mass. at 516. Second, the defendant takes issue with what he describes as the prosecutors instructing the jury on the law by arguing, “And by the way, it has nothing to do with whatever maybe in his mind somehow he might have rationalized it and thought it was okay. Thats not a defense to the crime of rape.” This comment drew no objection and was directly responsive to a central point of the defense, that the defendant believed the victim willingly engaged in sexual interactions with him. In this context, the statement was not improper and was consistent with established law. See Lopez, 433 Mass. at 728.
Although we conclude that the prosecutors aggressive advocacy did not quite rise to the level of prejudicial error, we are nonetheless left with an uncomfortable feeling about his conduct during this trial. A review of the transcript leaves one with the distinct impression that lines were pushed, blurred, and sometimes crossed. It bears reiterating that the job of a prosecutor is not to win, but to ensure “that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). See Commonwealth v. Keo, 467 Mass. 25, 36 (2014) (quoting Berger, supra, and discussing prosecutors ethical obligations). As such, “it is as much [a prosecutors] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Id., quoting Berger, supra.
Judgments affirmed.
FOOTNOTES
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. Assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b); rape, G. L. c. 265, § 22 (b); indecent assault and battery on a person fourteen years or older, G. L. c. 265, § 13H; and strangulation, G. L. c. 265, § 15D (b).
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. The defendants reliance on Commonwealth v. DiGiambattista, 442 Mass. 423 (2004), is misplaced. That case expresses a “preference that [police] interrogations be recorded whenever practicable” and, where the Commonwealth introduces evidence of a defendants unrecorded statement, a defendant therefore may request an instruction informing the jury that “they should weigh evidence of the defendants alleged statement with great caution and care.” Id. at 448. It is, however, also “permissible for the prosecution to address any reasons or justifications that would explain why no recording was made, leaving it to the jury to assess what weight they should give to the lack of a recording.” Id. at 448-449. Unsurprisingly, since it was his choice not to make a recording, the defendant did not request such an instruction.
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. This argument is based on a combination of preserved and unpreserved issues; as we find no reversible error under the more generous prejudicial error standard, we need not consider whether any of the claimed errors created a substantial risk of a miscarriage of justice.