52 Mass. App. Ct. 831 | Mass. App. Ct. | 2001
In August, 1998,. a Superior Court jury convicted the defendant on two charges of sexual intercourse and abuse of a child under sixteen years of age, G. L. c. 265, § 23, and on a charge of assault of a child with intent to rape, G. L. c. 265, § 24B. The jury acquitted the defendant on a third charge under G. L. c. 265, § 23.
The incidents at issue occurred on the night of December 25, 1996, when the victim, the defendant’s daughter, was fourteen years old. On appeal, the defendant raises four principal issues. We affirm.
1. The admission of a videotape. Anticipating the majority opinion in Commonwealth v. Quincy Q., 434 Mass. 859 (2001), decided after the briefing and arguments in this case, the defendant claims that a videotape of an interview of the victim
We conclude that Quincy Q. and Peters are inapplicable here because of the circumstances in which the videotape was introduced to the jury. The initial mention of the videotape occurred during the defendant’s cross-examination of the victim,
The obvious tactical choice by defense counsel to assent to the introduction of the videotape and to use its contents in an attempt to discredit the victim precludes the defendant from now challenging its admission in evidence. Commonwealth v. Fernette, 398 Mass. 658, 667 (1986). Our conclusion is analogous to the concept that “[t]he theory of law on which by assent a case is tried cannot be disregarded when the case comes before an appellate court for review. ...” Santa Maria v. Trotto, 297 Mass. 442, 447 (1937). See Commonwealth v. McCaster, 46 Mass. App. Ct. 752, 763-764 (1999), and cases cited. Just as a defendant may not complain about corroborative details first insinuated through cross-examination of the complainant, and further explored by the prosecutor during redirect examination, see Commonwealth v. Peters, supra at 30, so too the defendant, here, may not complain about corroborative details introduced as a result of his deliberate defense stratagem. Accordingly, we discern no judicial error. Moreover, by effectively assenting to the introduction of the videotape at trial, the defendant has waived his appellate claims of prejudice, erroneous admission of hearsay evidence and violation of his right of confrontation. Commonwealth v. Amirault, 424 Mass. 618, 649-650 (1997).
The defendant also claims the prosecutor “knowingly and calculatingly” asked the victim’s mother how old she and the defendant were when they began their romantic relationship, asserting that the jury would conclude from her reply that she was fifteen and that the defendant was having illegal sex with her. He argues that this question and answer would cause the jury to infer that he had an illegal sexual interest in his daughter, because she was approximately the same age at the time of the charged incidents in this case. Even if we view the question as an improper one, evidence that the defendant was attracted to a teenaged female while himself a teenager, does not support, without undue speculation, the conclusion that he would engage in a sexual relationship with his teenaged daughter many years later.
3. Closing argument. Contrary to the defendant’s claims, his counsel’s failure to object to portions of the prosecutor’s closing argument did not fall below the standard of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The prosecutor’s argument that the defendant would have the jury believe that the Commonwealth’s witnesses were all lying, and the prosecutor’s assertions that the defendant was lying, generally were accompanied by the words “the evidence establishes,” and thus were “expressed as a conclusion to be drawn from the evidence and not as a personal opinion.” Commonwealth v. Murchison, 418 Mass. 58, 60-61 (1994). There is no indication the prosecutor vouched for any witness or implied that he had any knowledge or information beyond the record, and his single
Considering the prosecutor’s closing argument as a whole, the strong advocacy permitted to prosecutors, and the measure of sophistication accorded juries, Commonwealth v. Sanna, 424 Mass. 92, 107-108 (1997), and cases cited, any impropriety in the prosecutor’s argument did not create a substantial risk of a miscarriage of justice. Where an omission of counsel does not create a substantial risk of a miscarriage of justice, there is no basis for a claim of ineffectiveness of counsel. Commonwealth v. Curtis, 417 Mass. 619, 624-625 n.4 (1994). See Commonwealth v. Jordan, 49 Mass. App. Ct. 802, 817 (2000).
4. Jury instructions
Judgments affirmed.
The interview was conducted by a coordinator of the sexual assault investigation network of the Massachusetts Society for the Prevention of Cruelty to Children.
The argument in the defendant’s brief begins with a paragraph citing Commonwealth v. Montanino, 409 Mass. 500, 510 (1991) (“the ultimate responsibility for determining the freshness of the complaint lies with the jury”), but the discussion shifts to the “humane practice” instruction. Because the defendant does not indicate how Commonwealth v. Montanino, supra, applies to this case, or make any argument alleging any erroneous fresh complaint instruction, we consider only the humane practice issue.
The statements made by the defendant to the police officers who interviewed him in jail contained several differences from his trial testimony.
This quotation is founded on Rhode Island v. Innis, 446 U.S. 291, 301 n.5 (1980), which, quoting from Miranda v. Arizona, 384 U.S. 436, 476-477 (1966), explains that “no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’ If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word. . . .” (Emphasis added.)