Commonwealth v. King

After a jury trial, the defendant was convicted of rape of a child with force. He appeals, arguing that the prosecutor misstated the evidence during closing argument, creating a substantial risk of a miscarriage of justice; his trial counsel was ineffective because he did not object; and the trial judge erroneously instructed the jury on consciousness of guilt. We affirm.

Background. In April, 2005, the defendant was indicted in two counts of rape of a child with force on divers dates between June 9, 2000, and December 17, 2004; one incident was alleged to have occurred in North Adams, the other in Savoy. At trial, the victim, who was the defendant's daughter, testified that, when she was five years old and living with him in North Adams, she was taking a nap in a bunk bed that she shared with her three year old sister. The defendant took her into the bathroom; he took off his clothes and her clothes, and then forcefully pinned her to the floor. The victim “didn't know what he was doing. [She] was scared. [She] started screaming and [she] said, ‘Stop, Daddy, it hurts.’ “ When the victim's sister knocked on the bathroom door, asking what was happening, the defendant “yelled at her to go back to bed.” The defendant placed his penis into the victim's vagina; he did not stop when the victim was screaming and asking him not to do it. Sometime later, but “not then,” the defendant told the victim not to tell anyone what happened. She also testified that the defendant raped her on other occasions.

At some later time, the defendant and the victim's mother reconciled and the whole family moved to a house in Savoy. While the victim's mother was working, the defendant took care of the victim and her sister. The victim testified that the defendant penetrated both her vagina and her anus in another incident at the Savoy house. She did not recall on how many occasions the defendant raped her while they were living there. However, she testified that, until the time that the defendant moved out of the house, both urination and bowel movements were painful for her.

Sometime in December, 2004, the victim confided in a friend that she took naps with the defendant and they cuddled; she also told her that “[the defendant] forced [the victim] to have sex with him when [she] was five.” Later that month, in response to a G.L. c. 51A report, North Adams police detective Richard Lesniak investigated the rape allegations. Lesniak attempted several times to speak with the defendant at his trailer home in North Adams, but the defendant was not there; in February 2005, after Lesniak left a note, the defendant came voluntarily to the police station. The defendant told Lesniak that he knew of the allegations in a broad sense; however he denied “doing anything” to his daughter and blamed his ex-wife for making it part of their divorce.

When Lesniak returned to the defendant's trailer to re-interview him, the defendant was not there and the trailer looked vacant. Sometime in or about the beginning of 2005, Lesniak received an arrest warrant for the defendant, but was unable to serve it because the defendant had left no forwarding address and the detective was unable to track him through the police computer. Sometime between 2005 and 2010, Lesniak had conversations with the defendant's former wife and she told him that the defendant might be tracked through his new wife in Manchester, New Hampshire. At Lesniak's request, local authorities found the defendant in New Hampshire and he was brought back to Massachusetts.

During defense counsel's closing argument, stressing the unlikelihood of the victim's story, counsel told the jury that she had testified the defendant “pushed her down on the bathroom floor, took off all of her clothes and brutally raped her, ... and at some unknown frequency continued to do that to her through the next four years until [ ] late in 2004 when he moved out of defendant. The victim has not seen or heard from the defendant since 2004 or 2005, when she was nine years old. the Savoy residence.” Counsel later said, “[y]ou are being asked I believe to indeed find beyond a reasonable doubt that this girl was brutally raped between the ages of five and nine on multiple occasions, multiple occasions.” “Four years of this type of abuse.”

During the prosecutor's closing argument, he began by saying, “there's a very good reason why everything that [defense counsel] just said to you is not evidence. Sometimes we as advocates for your position argue to you evidence that we think came in but really didn't and it's up to you in your collective memories to go over what the evidence was.” The prosecutor told the jury that the victim “never once testified that she was brutally raped”; the victim never stated that she was continuously raped, but rather “that it happened three times. [The defendant]'s only being charged with two.” There was no objection to that argument.

After closing arguments, the trial judge, in his instructions to the jurors, told them that, if either attorney expressed a “personal opinion[ ] ... or talked about things that you don't recall from the testimony, then ignore it because it's your collective memory of the testimony that controls”; he also reminded the jury of his instruction given at the beginning of the case, that “[o]pening statements of counsel, final arguments of counsel, helpful, appropriate, but not evidence.” in addition, without objection, the judge gave a consciousness of guilt instruction.

Discussion. Closing argument. The defendant first argues that the prosecutor misstated the evidence during his closing argument when he disputed defense counsel's statement that the victim claimed to have been brutally raped continuously for four years, “thereby eviscerating” his defense theory. Despite the fact that there was no objection, in the defendant's view, this argument created a substantial risk of a miscarriage of justice.

Like defense counsel, the prosecutor is “entitled to marshal the evidence and suggest inferences that the jury may draw from it.” Commonwealth v. Daley, 66 Mass.App.Ct. 254, 257 (2006), quoting from Commonwealth v. Dinkins, 415 Mass. 715, 725 (1993). The first part of the prosecutor's argument was inartful, at best, and probably better left unsaid. However, the defendant's challenge is directed to the balance of the argument, which was a fair statement based on the evidence. The prosecutor was correct that the victim never used the word “brutal.” Although she testified that the rapes happened on more than one occasion, the victim testified only to three specific incidents. Positing that the victim was testifying that the rapes had occurred continuously during the four year period described in the indictment was a conclusion drawn by defense counsel which the jury was free to disregard. “The weight and credibility of the evidence is the province of the jury.” Commonwealth v. Dubois, 451 Mass. 20, 28 (2008). In addition, the trial judge instructed the jury that the opening and closing arguments presented by each lawyer were not evidence, and we presume that the jury followed his instruction. See Kelly v. Foxboro Realty Assoc, LLC, 454 Mass. 306, 314 (2009). Finally, the jury found the defendant guilty on one indictment only, apparently not persuaded by the victim's testimony about subsequent incidents. We see no error and certainly no risk of a miscarriage of justice.

Ineffective assistance of counsel. The defendant next argues that, because his trial counsel failed to object to the prosecutor's closing argument, he was deprived of effective assistance of counsel. This argument also fails because the argument was not improper.

Consciousness of guilt. For the first time, the defendant argues that the trial judge improperly gave a consciousness of guilt instruction when there was insufficient evidence to support the prosecutor's theory. In his view, there was no demonstration of a temporal connection between the defendant's knowledge of the allegations of rape and his moving from his home without leaving a forwarding address. He contends that the instruction was highly prejudicial and created a substantial risk of a miscarriage of justice.

“Consciousness of guilt instructions are permissible when there is an ‘inference of guilt that may be drawn from evidence of flight, concealment, or similar acts.’ “ Commonwealth v. Vick, 454 Mass. 418, 423–424 (2009) (citation omitted). See also Mass. G. Evid. § 1110(a)(2013). “While a conviction may not be based solely on evidence of consciousness of guilt, indications of a defendant's state of mind, coupled with other evidence, can be sufficient to establish guilt. Commonwealth v. Vick, supra at 424. (citation omitted). Here, the jury heard evidence that, when Lesniak tried to reinterview the defendant early in 2005 at his trailer in Wheeler Estates, the trailer appeared to be vacant. Lesniak then tried, unsuccessfully, to locate the defendant through the police computer using his name, driver's license and registration, and social security number.

There was evidence that, after he left his trailer, the defendant moved several more times between Massachusetts and New Hampshire, each time without leaving any forwarding information. The defendant acknowledged on cross-examination that, at some point, he became aware there were allegations of rape filed against him. He also testified that he did not have a driver's license from either State, and was arrested in New Hampshire while driving a vehicle registered to his wife. The defendant agreed that “there was no way for anyone to track [him] once [he] found out” that he had been accused of sexually assaulting his child.

“The evidence summarized above reasonably could have led a jury to conclude that the defendant fled from his ‘usual environs' because of his consciousness of guilt.” Commonwealth v. Tu Trinh, 458 Mass. 776, 781 (2011). There was no error.

Judgment affirmed.
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