*1 Commonwealth Grimshaw. Grimshaw. vs. Lisa Becker 22, 1992. 5, 1992. February April
Hampden. C.J., Lynch, Greaney, Nolan, & JJ. Present: Liacos. O’Connor. Practice, Criminal, Argument by Syndrome. Homicide. Battered Woman Witness, Immunity. by prosecutor, prosecutor, Comment Sentence. case, closing argu- in In a murder the several statements improper appeal consti- ment that the defendant contended evidence, on or reasonable inferences from the proper tuted comments was improper and reference excluded evidence harmless error C.J., concurring. the circumstances. [506-511] Liacos, a reference to the defendant’s criminal case the gun” expert witness as a “hired created no substantial risk of a miscar- In a riage murder justice. case there [511] was no error in the judge’s denial of the defend- immunity request prospective
ant’s for for a witness where the witness target prosecution was case and there were no potential grant immunity. require “unique circumstances” that would [511- 512] appeared
No for this to consider a criminal defendant’s claim reason court manslaughter unduly severe. her sentence on conviction [512-513] Court De- Superior found returned
Indictment on June 1985. partment Jr., tried before John F. Murphy, J.
The case Court, After review Judicial Supreme Appeals Court review. granted leave obtain further appellate Gertner
Nancy for defendant. Vuono, D. Ariane District Attorney, Assistant Special the Commonwealth.
Nolan, manslaughter J. A convicted the husband, she was connection with the death of her twenty years. Ap- sentenced a term of fifteen Court peals affirmed the defendant’s conviction. 31 Mass. *2 Ct. We App. granted the defendant’s appli- cation further review. appellate The defendant makes arguments (1) three on judge the trial erred in appeal: refus- ing grant give to a mistrial or to curative instructions specific as a result of several alleged improprieties closing argument; (2) the judge’s grant refusal immunity to a witness prospective violated the right due under process the Fourteenth to the United Amendment States Constitution and art. 12 of the Declaration Rights Constitution, of the Massachusetts as well as her right to under the Federal State Constitu- compulsory process tions; and (3) the sentence imposed violated the by Eighth Amendment the United States Constitution and art. of the Massachusetts Declaration of We Rights. affirm. defendant, is
It undisputed early morning 5, 1985, victim, husband, hours of June lured the to a secluded and wooded where area two her friends blud- geoned victim to with death baseball bats. The defense was that the defendant suffered from battered woman syn- drome, disorder, a subclass of posttraumatic which al- stress legedly was caused by history of psychological, physical, men, and sexual by including abuse several the victim. The defendant contended that this condition her. to per- prompted ceive that was in of grievous she imminent danger bodily victim, it, harm from the she had no she way escape had no choice but to defend herself.1-
1. The Defense ob- prosecutor’s closing argument. counsel jected at trial to clos- several statements argument which ing the defendant contends appeal expert 1The issue properly whether allowed admission syndrome on the battered woman is before this court. yet Whether such to be de evidence admissible Massachusetts has Lazarovich, Commonwealth (1991); See cided. Moore, Therefore, Commonwealth App. Ct. we position take no on the matter at this time. v. Grimshaw. general instructions.2 and not cured judge’s prejudicial mis- alleged These statements include: defense; reference the prosecutor’s characterization misstate- prosecutor’s alleged and the testimony; excluded not ob- Additionally, although concerning ments evidence. trial, argues on appeal the defendant also jected to and his the prosecutor misstatement another witness created sub- of the defendant’s description expert We discuss each al- miscarriage justice. stantial risk of a leged below. impropriety In his argu-
a. Mischaracterization of defense. ment, the defense as follows: characterized *3 to have mind I the they saying you. what are “[K]eep it’s self-de- right acquitted totally legitimate be that, fense, But if if don’t I was intoxicated. you buy you but that; the don’t then I entered into venture only joint buy the not him. What is hurting victim], killing extent of it, C, A, B, [you] it? Which one is D? wanted take They them, A, B, D, as as don’t take the long you C or truth, as don’t take truth will be satis- long you as the they fied.” defendant contends that mis- statement defense, the characterized that the compari- son of defense with “the truth” that the implied his knew the truth and prosecutor injected per- improperly his closing argument. sonal belief into “If on matters on the record he with speaks propriety before comment jury, prosecutor may the properly or developed trial tactics of defence and on evidence Dunker, v. 363 the defence.” Commonwealth promised by Bradshaw, 792, (1973). Mass. 800 See Commonwealth 244, v. MacDonald (1982); 385 Mass. counsel, her Defense (No. 1), several times to consider closing argument, jurors asked time of the the effect of intoxication on defendant at the murder, evidence from which and defense counsel introduced you arguments heard 2The instructed the “[t]he morning here this are evidence.” Commonwealth v. Grimshaw. could infer defendant was intoxicated at that time. The defendant also stated more than one occa- her sion in that she wanted to only hurt victim. these prosecutor’s suggestion alternate theories presented inno- justifying record, cence and there no supported by error. Regarding the use “the truth” compari- theories, son with various defense inter- prosecutor belief, and, most, jected no extraneous material or he ex- his view pressed strength the evidence. This Smith, See Commonwealth v. proper. 906-907 Cf. Commonwealth De Chris- (1971) (“I toforo, frankly think quite find they something him a little hope you guilty murder”). less first-degree than b. The to excluded evidence. Although reference sustained defendant’s to the objections at- into the sexual tempts inquire possible rela- witness, Tetreault, with one Roland tionship particular argued as follows in closing argument: his “He told about that in Novem- you incident [Roland Tetreault] ber, didn’t in. deny broke Use common your [the victim] sense draw the inference. He indicated the two of them must, *4 couch, were been fight what that have about. Use common your prosecu- sense.” These statements tor barred prosecutor referring A is improper. been closing argument to matter that has excluded from evi- dence, Burke, 569, v. Commonwealth 373 Mass. 575 (1977), and a an inviting should also refrain from infer- prosecutor ence from the the same excluded matter. jury subject about though
Even statements were we do not these improper, because reverse we are convinced that this error was harm- Bradshaw, (refer- less. v. 274 See Commonwealth at supra ence to excluded evidence does not constitute necessarily reversal). “The prejudice warranting question essential had, had, or an on the might whether error have effect have might and whether the error contributed to or con- jury Perrot, tributed to the v. verdicts.” Commonwealth 412 Mass. v. Grimshaw.
Commonwealth evidence intro- 539, already was (1990). There relationship have inferred a could jury from which the duced evi- There also and Tetreault.3 between the defendant with relationships had had sexual that the defendant dence cir- of the murder.4 around the time two other men case, no that the prosecutor’s there is risk cumstances of to their or contributed statements had effect verdict. are instances There three testimony.
c. Misstatements of misstated where the defendant contends that the conclude that there closing his We argument. was no error in of these statements. following
The first misstatement concerns sit back and might say “You prosecutor: statement by being is human conniving what type manipulative, she is? The same prosecutor] suggesting type manipulative human or conniving being twenty-three twenty-four kid and old that would take a street years nineteen-year-old them, sex, kid one with sixteen-year-old street and ply alcohol, in or- other with and both with of money, promise der done she The de- get something wanted done.” contends that this fendant
there was evidence that the sixteen plied no the defendant A evening old with alcohol on the of the murder. year youth however, argument, analyze prosecutor may, what suggest evidence and reasonable inferences v. should draw from that evidence. Commonwealth Colon- Cruz, (1990). Commonwealth Richenburg, 401 Mass.
Lamrini, was evidence There rela- had a sexual age youths, these that the defendant them, had dis- with one of and that the defendant tionship life insurance policy cussed potential proceeds together during 3The defendant and Tetreault lived several months *5 1984 and 1985. Bruyette, youths of mur 4These two men were Michael one the who Fredette, victim, Darryl of first dered the and the father alleged one child and of -her batterers. with them. There was also that evidence the defendant and youths drank the alcohol at defendant’s home frequently, of including night circumstances, the murder. these statement was a reasonable inference from the evidence.
The second alleged misstatement involved the prosecutor’s suggesting to jury that infer that the de- they fendant given had photograph the victim to one of the assailants, Michael Bruyette, before of the murder night as part for the murder. preparations “In closing argu- ment, counsel may argue the evidence the fair inferences which can be drawn the evidence.” Commonwealth v. Hoffer, 375 Mass. “Counsel may also at- tempt to assist the in their task jury of analyzing, evaluating, evidence. Such assistance applying suggestions includes counsel as to what conclusion should draw from Ferreira, the evidence.” The argues defendant that the evidence does not inference, support but we believe inference ais fair one. 6, 1985,
While in police on June custody turned Bruyette over to police cut that had been and altered photograph depict only victim’s likeness. The original photograph had included the defendant’s likeness as well. Bruyette prob- ably received the from either the defendant or the picture victim, but did know Bruyette not the victim. The defendant argues that could have Bruyette obtained the photograph from the victim’s wallet which took from Bruyette the victim trial, night the murder. There was evidence at how- ever, that Bruyette the contents disposed wallet in a trash dumpster shortly after the murder. In these it was for the proper suggest to infer they gave Bruyette of the victim to the photograph prior night of murder. misstatement, trial, objected final to at in- volves this statement “Roland Tetreault prosecutor: know, you she made think- says, a statement me I’m doing about ing something towards crazy [the victim].” *6 Te- this statement making denied While the himself, his testimony, at one treault, point Tetreault about “thinking statement as characterized victim, Te- with the relationship her something about” doing told a detective he had later testified that previously treault him, thinking about had stated to “I’m that the defendant crazy Consequently, about doing something victim].” no prosecutor. there was misstatement The defendant d. witness. The description expert defendant’s ex- argues following description witness, a professional witness pert improper: “[S]he’s a classic exam- got testimony, I she’s dough, you got use addressed the of a hired This court gun.” specifically ple witness Common- gun” of “hired to describe expert O’Brien, wealth v. de witness was retained
The fact that expert subject fense have been an appropriate would at defense counsel Additionally, though See id. 778. jury. O’Brien, objection raised in no specifically objected argu See While we of this case. id. 777. disapprove ment, miscarriage justice. is no there substantial risk of See id.
2. The de- witness. Immunity prospective defense for ob- next contends she been able to fendant should have witness, tain a of use her grant immunity for prospective mother, Becker’s argues Becker. The defendant Shirley would have testified was essential Becker testimony she, defendant, the victim’s insurance discussed victim. According with the two who killed the policy youths defendant, undermined the Common- could have whom that the defendant hired two assassins theory wealth’s insurance she with the of a proceeds lapsed promised pay oc- the defendant had stated several Additionally, policy. casions to trial that she had discussed insurance prior that she made with the but at trial she testified policy youths, her mother. The de- those statements only prior protect corrob- contends that Becker’s would have fendant testimony. orated that of the defendant’s aspect Commonwealth v. Grimshaw. denied the defendant’s motion and pretrial motion trial during concerning immunity On Becker. ap- the defendant peal, makes two arguments: that there is no *7 interest in public preserving discretion Becker, prosecute the novel circumstances of the case constituted circumstances” “unique a required grant of immunity. her first By argument, the defendant would shift the of onus onto the in proof Commonwealth wit- ness immunity that, This court has held questions. already barring unique into “any inquiry question of is foreclosed immunity if is an prospective witness ac- tual or potential target of prosecution.” v. Commonwealth Doherty, 341, 394 Mass. The mo- tive in opposing revolved around the immunity potential pros- Becker, of ecution if and or when reliable corroborative evi- available, dence her in implicating became conspiracy and the judge found no of suggestion by prosecutorial misconduct or motive any ulterior prose- in. cutor’s opposition immunity. There is no merit in de- fendant’s first argument. is
Similarly, there no merit in the argument defendant’s concerning the unique circumstances of this case. Although court this has stated that some “in circumstances . . . unique due process may require granting limited of immunity,” Curtis, form Commonwealth v.
637,
(1983),
we have never defined what those “unique
circumstances”
That
case
may entail.
involved a bat-
defense,
tered woman
which the
syndrome
ac-
probably
cepted
light
manslaughter,
their verdict of
does not
create
of the
unique circumstance
sort
existed Gov-
Smith,
ernment
v.
(3d
1980),
V.I.
3. The sentence. defendant’s final is length sentence fifteen to con- imposed, twenty years, ap- The defendant cruel or unusual punishment. stitutes Su- Division Appellate her sentence to the pealed which, G. c. 28B accordance with L. Court perior § sentences, and, final review (1990 ed.), authority has dismissed her While authority, appeal. to that pursuant of law or constitu- review sentences for errors court should violations, con- merely do for matters we should not so tional sentencing, major which cerning alleged disparities See Commonwealth argument. thrust of the im- The sentence 252-253 Longval, Legisla- was within the maximum authorized posed ture, argu- and we find no (1990 ed.), see L. c. G. § within of constitutional dimension ment severity. claim that the acted with undue
Judgment affirmed. Liacos, write to (concurring). C.J. I separately emphasize his closing reference in the impropriety court’s excluded evidence and to argument expand to argu- In harmless error this reference. his analysis regarding ment, told stated that Tetreault] “[Roland November, vic- didn’t you deny about that incident [the broke to draw the inference. in. Use common sense your tim] couch, that He were on the what indicated two them sense.” As fight must have been about. Use common your out, im- the statements were court’s opinion correctly points ob- had judge because trial proper upheld Addi- jection activity. to such sexual regarding questions were because improper statements tionally, Tetreault, during specifi- direct examination prosecutor, at bar both defense counsel side assured cally sexual into get that he did not “intend comment, the of this activity light prose- with Tetreault].” issue raise the sexual activity cutor’s subsequent attempt argument deception. Finally, his borders do not they statements improper Commonwealth v. Grimshaw. testimony conform the at trial. Contrary to the prosecu- tor’s statement to the jury, Tetreault’s does in- dicate in any way that defendant or Tetreault was “on the couch.” Tetreault’s testimony reveals that de- only fendant and Tetreault were in the defendant’s apartment the time of the attack.1 The prosecutor’s unfounded reference to a traditionally situation served en- compromising only to courage to draw an inference of sexual activity was not warranted by the evidence presented at trial.
It is clear statements invited the jury to infer that victim’s November attack was caused not abusive nature toward his wife but by the defendant’s extramarital sexual activity with Roland view, Tetreault. In such an my creates a dangerous risk of insinuating to jurors they can conclude properly justified victim was his wife for infi- beating delity. risk, In order avoid of evidence should type be admitted rarely only in limited (e.g., pertaining the defendant’s state of mind), and when only accompanied stringent limiting instructions from the trial judge. Unfortunately, the prosecutor’s introduction of this during issue his closing argument to the jury effec- tively the trial prevented exercising these controls.
Notwithstanding the absence of cautionary appropriate *9 case, measures I concur present with the court that the statements prosecutor’s constituted harmless error. The harmless error analysis the court’s provided how- opinion, ever, does not the full range consider error cre- potential ated by statements. court prosecutor’s The concludes that the error was harmless because evidence was admitted at trial from which the could conclude jury had had sexual relations with Tetreault two other men However, near the time of the homicide. impact of 1Similarly, 21, 1984, testimony regarding the November being attack does not describe either herself or Tetreault as “on couch.” v. Grimshaw. the defendant’s his- beyond extends statements activity. sexual of extramarital tory was that at the defendant’s case of the A central pillar woman syn- from battered she suffered time of the homicide drome, caused allegedly by disorder stress a posttraumatic the vic- abuse. Evidence of constant and habitual the victim’s a crucial role played attack on November tim’s the victim regu- to establish that the defendant’s attempts her, from battered her to suffer thereby causing abused larly wit- In the words of the defendant’s expert woman syndrome. this attack was “the sig- on battered woman syndrome, ness incident, incidents that oc- [j/c] one the worse nificant curred in November of 1984 that
pushed danger level” (empha- with the over relationship victim] added). sis al- and unfounded statements to infer 21 attack was not
lowed the November abuse, ongoing suggested an the victim’s as example of defendant, incident caused but was isolated by merely his wife’s rage witnessing Such by infidelity. the defendant’s at- an inference would have harmed certainly from battered woman establish she suffered tempts due to chronic syndrome Accordingly, potential abuse. been considered of this inference should have impact error. assessing court in the harm caused however, case, it appears circumstances the present ver- jury’s that the error was harmless because the rendered the de- accepted dict of manslaughter suggests battered woman syn- fendant’s claim that she suffered from short, good sense drome at the time of the homicide. In of his consequences saved a from the jurors own I concur. folly. Accordingly,