COMMONWEALTH v. Kaquan HURD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant was convicted of aggravated rape and three counts of indecent assault and battery.2 On appeal, he claims that the judge improperly excluded eleven potential jurors for cause based on their response to a voir dire question that asked whether they believed the Commonwealth could prove its case beyond a reasonable doubt without scientific evidence. He also challenges the admission of expert testimony on the process of memory and on the absence of physical injury in children who have been sexually assaulted. In addition, the defendant challenges the admission of testimony by the victim regarding her relationship with certain relatives who were friendly with the defendant and the admission, under the doctrine of verbal completeness, of a prior statement made by the victim's father. Lastly, he asserts that the prosecutor exceeded the bounds of proper argument during her closing argument. We affirm.
Background. We summarize the facts the jury could have found and reserve certain details for later discussion. In 2016, the victim, whom we shall call Sally, was eleven years old and living with her parents in an apartment in East Boston. In May or June, several relatives from Georgia came to visit. The defendant was dating one of the relatives, a young woman named Victoria. He accompanied the group on the trip and stayed with Sally's family. During the visit, which lasted about a week, the defendant sexually abused Sally on multiple occasions. He kissed and touched her chest and buttocks over her clothes, and on one occasion, he held a pocket knife to Sally's throat and warned her not to tell anyone. One night, while Sally was getting some food in the kitchen, the defendant came up behind her and pulled down her leggings and underwear. Then, as Sally testified, she felt the defendant's penis in her “butt hole” and it hurt. Sally did not immediately disclose these incidents to anyone because of the defendant's warning, which scared her. Several months later, Sally was reprimanded by her father over an unrelated incident concerning a boy who posted a picture of her on social media. Sally became upset during the conversation and revealed for the first time that the defendant had “touched” her.
Discussion. 1. Exclusion of jurors for cause. The defendant contends that he was denied his right to a fair trial by an impartial jury because the judge improperly struck eleven potential jurors for cause based on their response to the following question: “Do you believe the Commonwealth is ever able to prove its case beyond a reasonable doubt without scientific or DNA evidence?”3 The question was posed by the judge during individual voir dire at the request of the Commonwealth. The defendant did not object to the question or to the removal of the potential jurors. Because the issue is not preserved, we review to determine whether there was error and, if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Watkins, 98 Mass. App. Ct. 419, 427 (2020).
“We afford a trial judge a large degree of discretion in the jury selection process.” Commonwealth v. Perez, 460 Mass. 683, 688 (2011), quoting Commonwealth v. Vann Long, 419 Mass. 798, 803 (1995). “The judge's duty is to ‘examine jurors fully regarding possible bias or prejudice where it appears that there is a substantial risk that jurors may be influenced by factors extraneous to the evidence presented to them.’ ” Perez, supra, quoting Commonwealth v. Garuti, 454 Mass. 48, 52 (2009). “In deciding juror impartiality, it is sufficient for the judge to ‘determine whether jurors [can] set aside their own opinions, [properly] weigh the evidence ․ and follow the instructions of the judge.’ ” Perez, supra at 688-689, quoting Commonwealth v Bryant, 447 Mass. 494, 501 (2006). “The scope of a voir dire is in the sound discretion of the trial judge and will be upheld absent a clear showing of abuse of discretion.” Perez, supra at 689, quoting Garuti, supra.
We conclude that the trial judge did not abuse her discretion. The question, which was similar to the question deemed proper in Perez,4 was “tailored to ensure that seated jurors were capable of deciding the case without bias and based on the evidence.” Perez, 460 Mass. at 691. “The questions did not suggest to potential jurors that a lack of scientific evidence could not be considered in determining whether a reasonable doubt existed as to the defendant's guilt,” nor did it “commit the jury to a verdict in advance ․ [or] have the effect of identifying and selecting jurors who were predisposed to convicting the defendant based on evidence the Commonwealth would present.” Id. In light of our conclusion, it follows that the question did not violate Rule 6(3)(e) of the Rules of the Superior Court (2018) that bars such questions, nor did it violate that rule's prohibition on questions that include hypotheticals close to the facts of the case being tried.
2. Admissibility of statements under the doctrine of verbal completeness. The defendant contends that the judge erred by admitting, under the doctrine of verbal completeness, prior statements of Sally's father during his grand jury testimony. We conclude otherwise.
At trial, Sally's father testified as the first complaint witness that Sally “told me that he put a knife to her throat, and he told her if she told me about it, he would kill her.” On cross-examination, defense counsel attempted to impeach the father's testimony by demonstrating that he had testified differently before the grand jury. Defense counsel asked, “Isn't it true that when your daughter told you about her allegations, she told you that during the threat that Mr. Hurd allegedly made to her not to tell, isn't it true that she told you that he did not have a weapon?” The father denied that Sally had said that the defendant did not have a weapon, and then defense counsel read the following from the transcript of the father's testimony before the grand jury:
Q.: “Did she tell you anything about the threat, like whether anything he used to make that threat?”
A.: “Well, I don't -- she didn't say he had a weapon or anything.”
When defense counsel asked the father if he recalled testifying to this effect under oath, the father answered, “I don't remember that.” The Commonwealth objected on the ground that the portion of the testimony read by defense counsel was misleading because it was not complete. The judge agreed and instructed defense counsel to read an additional portion of the transcript, which he did.5
“Under the doctrine of verbal completeness, ‘[w]hen a party introduces a portion of a statement or writing in evidence,’ a judge has the discretion to ‘allow[ ] admission of other relevant portions of the same statement or writing which serve to “clarify the context” of the admitted portion.’ ” Commonwealth v. Aviles, 461 Mass. 60, 75 (2011), quoting Commonwealth v. Carmona, 428 Mass. 268, 272 (1998). “To be admitted, ‘the additional portions of the statement must be (1) on the same subject as the admitted statement; (2) part of the same conversation as the admitted statement; and (3) necessary to the understanding of the admitted statement.’ ” Aviles, supra, quoting Commonwealth v. Eugene, 438 Mass. 343, 350-351 (2003).
“Here, defense counsel introduced only the portion of [the father's] grand jury testimony that helped the defendant's case. [Consequently,] he ‘opened the door for the admission of the remainder of [the testimony].’ ” Aviles, 461 Mass. at 75-76, quoting Commonwealth v. Tennison, 440 Mass. 553, 564 (2003). That testimony was on the same subject and part of the same exchange, and served to clarify the segment of testimony introduced by defense counsel. See Aviles, supra at 76. Accordingly, there was no error.
3. Admission of testimony concerning Sally's changed behavior. Sally testified on direct examination that her feelings changed after the events in question and that she became “sad.” She also testified that her relationships with some of her relatives, in particular Victoria and Victoria's brother, had deteriorated. The defendant argues that the challenged testimony was unfairly prejudicial because it allowed Sally to corroborate her own testimony about the allegations and evoked sympathy from the jury for Sally's situation. The defendant objected to the challenged testimony and, therefore, we review for prejudicial error. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
Even if we were to assume error, it was not prejudicial. First, testimony that Sally's behavior changed after the defendant's visit was relevant to rebut the defendant's claim that Sally fabricated the allegations months later when her father reprimanded her in connection with an unrelated incident with a boy. Second, it was cumulative of testimony provided by Sally's parents, to which there was no objection. Third, it is hardly surprising that an eleven year old victim of a sexual assault would be “sad” or that her relationships with family members that remained close to the alleged assailant would change. In sum, the evidence had some probative value and little prejudicial effect. See Commonwealth v. Bonds, 445 Mass 821, 834-835 (2006). More importantly, the judge instructed the jury on the issue of prejudice and on the need to confine their deliberations and decision to the evidence. The judge specifically noted that sympathy for one party should not play any role in the process. See id.
4. Dr. Block's testimony on memory. Dr. Stephanie Block, who has a doctorate in psychology and is an associate professor at the University of Massachusetts, Lowell, and who did not examine the victim or know anything about the facts of the case, testified about the process of storing memory. She described the three stages of memory, i.e., encoding, storage, and retrieval, and explained the difference between central and peripheral details. She testified that during traumatic events, central details are encoded while peripheral details are not and, as a result, people tend to forget peripheral information.6 The defendant claims that Dr. Block's testimony was not relevant because the case did not present issues of claimed memory lapses, repressed memories, or the type of severe trauma that might lead a person to forget peripheral details. Because the defendant objected to this line of questioning at trial, “we review to determine whether the error, if any, prejudiced the defendant[ ].” Commonwealth v. DePina, 476 Mass. 614, 624 (2017).
Although Sally did not experience memory lapses, nor was there evidence that her memory was repressed, she did experience trauma and she testified inconsistently with regard to certain peripheral details. For example, at trial Sally described the knife the defendant held to her throat as a pocket knife, but had previously described the knife as a kitchen knife.7 Thus, Dr. Block's testimony explaining why victims who suffer trauma often have difficulty remembering peripheral details was relevant. See Commonwealth v. Frangipane, 433 Mass. 527, 534-535 (2001) (no error in permitting expert to testify regarding “dissociation and recovered memory” where victim's credibility was at issue in light of claim that she “immediately forgot about the rape”). Furthermore, with respect to expert testimony on the process of memory or memory disorders in general, the Supreme Judicial Court has held that, “[p]roperly limited, such expert testimony does not intrude on the jury's function of determining the credibility of witnesses.” Commonwealth v. Polk, 462 Mass. 23, 36 (2012). Dr. Block's testimony did not intrude on the jury's role of determining credibility here. Similar to the situation presented in Polk, Dr. Block explained that she was not a percipient witness and that she was not familiar with Sally; nor did she offer any opinion on Sally's veracity. In addition, the judge instructed the jury that they alone would determine the credibility of the witnesses, including the credibility of expert witnesses, and that expert witnesses are not entitled to deference just because of their training and experience. The judge instructed the jury, “Merely because a witness has expressed an expert opinion, however, does not mean that you must accept that opinion. In the same way as with any other witness, it is up to you to decide whether to rely on it, whether to accept it. You may accept each expert's testimony, reject it, or give that expert's testimony such weight as you determine it deserves.” Given these circumstances, even if we were to assume error, we are confident that the testimony “did not influence the jury or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).
5. Dr. Newton's testimony regarding absence of injury. Dr. Alice Newton, a practicing physician who is also the medical director of the Child Protection Program at Massachusetts General Hospital, testified about the collection of physical evidence after allegations of sexual assault and the anatomy of the anal canal. Dr. Newton had no personal knowledge of the case and had never met the defendant or Sally. Dr. Newton testified, generally, about the time constraints associated with physically examining a child who complains of sexual abuse, specifically anal penetration. She also explained that given certain specific features of the anatomy of the anus, the absence of evidence of trauma would neither confirm nor rule out that a child had been sexually assaulted. Although the defendant did not object at trial, he argues that Dr. Newton's testimony was not relevant because it was undisputed that Sally was not examined by a doctor after the alleged assaults.
“[A] medical expert may be able to assist the jury by informing them that the absence of evidence of physical injury ‘does not necessarily lead to the medical conclusion that the child was not abused,’ ․ because ‘[t]he jury may be under the mistaken understanding that certain types of sexual abuse always or nearly always causes physical injury or scarring in the victim.’ ” Commonwealth v. Alvarez, 480 Mass. 299, 314 (2018), quoting Commonwealth v. Frederico, 425 Mass 844, 851 & n.13 (1997).
We conclude that the judge did not abuse her discretion in determining that the testimony was relevant. Dr. Newton's testimony helped explain why Sally's parents or the police did not pursue a physical examination at the time Sally disclosed what had happened. Moreover, the testimony stayed within proper bounds. As noted, Dr. Newton stated that she had no personal knowledge of the case, nor did she comment on Sally's credibility or compare Sally's characteristics to the general characteristics of sexual abuse victims. See Federico, 425 Mass. at 849-852.
6. Closing argument. The defendant argues that the prosecutor improperly vouched for the victim by making the following statements:
“She wasn't trying to hide anything. She wasn't trying to make things up or say something that she didn't know about. She was honest․ [S]he's telling you what she remembers, to the best of her ability. And she's not making things up just to make them up.
“Ladies and gentlemen, the victim also told you about a time that the defendant spread her legs and touched her, and she told you honestly that she had forgotten about that․ And in this case, the victim wasn't -- again, was not trying to hide anything.
“She doesn't have a motive to lie, and she got up there and was honest on the stand.”
The defendant did not object to these statements at trial, and so we review to determine whether there was error and, if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 763 (2016).
“Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury.” Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). Improper vouching “occurs when a prosecutor expresses his or her own belief in the credibility of witnesses or implies that he or she has knowledge independent of the evidence presented at trial,” Commonwealth v. Kebreau, 454 Mass. 287, 304 (2009), or “suggests that the government has special knowledge by which it can verify the witness's testimony,” Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989).
The prosecutor should not have described Sally's testimony as “honest.” However, she did not express any personal opinion or special knowledge of the case. Reviewing the argument as a whole, the prosecutor's argument was structured to focus on Sally's testimony and to rebut the defendant's claim that Sally fabricated the allegations by pointing out that she had no motive to do so. See Commonwealth v. Rakes, 478 Mass. 22, 45 (2017). We therefore discern no error that would result in a substantial risk of a miscarriage of justice.
We have considered the defendant's other unpreserved claims of error in the closing argument -- including the contrasting of memory and a video camera, the statement that Sally and her family had trusted the defendant and he betrayed them, and the assertion that Sally forgot certain details because she was trying to push painful memories out of her mind -- and conclude that none of these comments exceeded the bounds of proper argument.
2. This was the defendant's second trial. The first one ended in a mistrial due to a hung jury. At the conclusion of the first trial, the judge allowed a motion for a required finding of not guilty on a charge of assault with intent to rape. At the second trial, a motion for a required finding of not guilty was allowed on a charge of intimidation of a witness. In addition, the Commonwealth entered a nolle prosequi on two charges of indecent assault and battery on a child under the age of fourteen.
3. The judge also asked variants of the question including, “Do you believe that the Commonwealth can prove its case beyond a reasonable doubt without having medical or scientific or forensic or DNA evidence, just testimony?” and “Do you believe that the Commonwealth is ever able to prove its case beyond a reasonable doubt without forensic or DNA evidence but only [the] victim's testimony?”
4. In Perez, the judge asked potential jurors whether they believed “the Commonwealth is never able to prove a case beyond a reasonable doubt unless it presents scientific evidence to corroborate witness testimony.” Perez, 460 Mass. at 689.
5. Defense counsel read the following exchange:Q.: “Okay, she said that that's what Kaquan had said?”A.: “Yes.”Q.: “If she told her father that he would slice her throat?”A.: “Yeah.”Q.: “Okay. And did she tell you anything about that threat, like whether he used anything to make that threat?”A.: “Well, I don't -- she didn't say he had a weapon or anything, but I know about his standing about a bunch of knives” --Q.: “Okay.”A.: -- “in the kitchen. You know what I'm saying?”Q.: “Uh-huh.”A.: “That's when he said it to her.”Q.: “Okay. And you said what he actually said was that if she told he would slice her throat; is that right?”A.: “Yeah, said he would slice her throat.”
6. Most of Dr. Block's testimony concerned delayed disclosures by child victims of sexual assault. The defendant does not challenge the admission of this testimony.
7. We note that the defendant relied on these inconsistencies to suggest that Sally had fabricated her accusations against him.
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