Skip to main content


Reset A A Font size: Print

Appeals Court of Massachusetts.



Decided: April 15, 2021

By the Court (Neyman, Shin & Singh, JJ.1),


Following a jury trial in the Superior Court, the defendant, Eugene Graham, was convicted of three counts of indecent assault and battery on a child under fourteen.2 On appeal he argues that the judge abused his discretion in failing to order, sua sponte, a competency evaluation of the defendant. He also contends that the prosecutor's closing argument was error that created a substantial risk of a miscarriage of justice. We affirm.

Background. We need not delve too deeply into the details of the case presented at trial. In brief, the jury heard testimony from the seven year old victim, who was five years old at the time of the sexual assaults; the victim's grandmother who was the first complaint witness; the victim's mother; an expert witness regarding the issue of partial or delayed disclosure in pediatric sexual assaults; a sexual assault nurse examiner who examined the victim; and a detective-lieutenant from the Gloucester Police Department. The evidence detailed how, when, and where the defendant, who was the victim's godfather, sexually assaulted the victim on multiple occasions. The defense focused, inter alia, on inconsistencies in the victim's testimony, her motive to lie, and her mother's motive to lie. The defendant testified at trial and denied the allegations.

Discussion. 1. Competency. The defendant contends that the judge erred in neglecting to conduct a competency assessment of the defendant. “It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” Drope v. Missouri, 420 U.S. 162, 171 (1975). “[T]he test of the defendant's competence to stand trial is ‘whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him.’ ” Commonwealth v. Hill, 375 Mass. 50, 54 (1978), quoting Dusky v. United States, 362 U.S. 402, 402 (1960).

“Where there exists a substantial question of possible doubt as to whether the defendant is competent to stand trial, the judge must conduct a hearing on competency prior to trial, and the defendant may be tried only if the Commonwealth proves the defendant to be competent by a preponderance of the evidence” (quotations and citations omitted).

Commonwealth v. Corbett, 98 Mass. App. Ct. 34, 35 (2020). See also G. L. c. 123, § 15 (a).3 We review a judge's competency determination for abuse of discretion. See Commonwealth v. Jones, 479 Mass. 1, 14 (2018).

In the present case, prior to opening statements, defense counsel advised the judge that the defendant “is on a couple of [prescribed] medications ․ that cause him drowsiness and sleepiness.” Defense counsel asked the judge to permit the defendant to alert her should he feel “extraordinarily drowsy,” and to take a break from the proceedings if necessary. The judge responded as follows:

“All right. Well, I've been watching everybody very closely. That's my responsibility. And I've noticed that he has closed his eyes from time to time. But and then when I see that, which is pretty -- I'm sure every time he does it, I am extremely attentive to his demeanor. And if he does not immediately open his eyes, then I would consider in some fashion waking him up. But in the same way you would a juror, just by me standing up and saying everybody -- the -- the -- the temperature of the courtroom is, of course, not of any assistance. But it can be done and in a natural and unobtrusive way․ But I would never allow the trial to go forward unless I was confident that the defendant was paying close attention, and I so find at this time․ So far. And I will interrupt him if I see any issues․ Believe me with a jury in the box I will be even more attentive, if that is possible.”

We discern no error in the judge's response. Defense counsel did not request a competency examination. She did not claim that the defendant lacked the capacity to understand the nature of the proceedings, was unable to consult with her, or unable to assist in preparing his defense. See Drope, 420 U.S. at 171. To the contrary, the judge found, supra, that the defendant “was paying close attention.” Furthermore, the judge promised that he would continue to watch “closely” and would not allow the trial to move forward should the defendant not be paying close attention. The judge's unequivocal remarks negated any risk that the trial would proceed should the issue of the defendant's competency become an issue.

The defendant responds that despite the judge's promise, the record suggests that the defendant was not competent to stand trial. The argument is unavailing. The defendant alludes to three instances at trial to support his claim. In the first instance, after the prosecutor asked if she could “go out” to bring the second witness (the victim) into the courtroom, the judge replied, “I don't think so. I think -- you know what? I did not finish my coffee. We're going to take an additional break.” Following a recess, the victim commenced her testimony. The record does not reflect that the defendant's demeanor or competence was at issue. Even assuming that the judge took the recess in order to ensure that the defendant was able to participate (an assumption not established on this record), there is nothing to demonstrate that there existed “a substantial question of possible doubt” as to whether the defendant was competent to stand trial. Hill, 375 Mass. at 54, quoting Rhay v. White, 385 F.2d 883, 886 (9th Cir. 1967).

Similarly, in the second example raised by the defendant, the judge stated, during the testimony of a different witness, “Everybody is wide awake, right? All right. Everybody is wide awake? Why don't we all stand if you want and get some blood flowing.” Here again, there was no objection, and no reference to the defendant.

In the third and final example raised by the defendant, following a request by counsel to be heard at sidebar, the judge told the jurors, “Feel free to stand up and move around, folks, if you like. [Defendant] as well.” The judge then stated to counsel, “Obviously I'm making sure that the defendant is awake and paying attention.” Defense counsel did not object, did not reference the defendant, and did not raise the issue of the defendant's inability to participate or follow the proceedings. The record does not support the claim that there existed “a substantial question of possible doubt” as to whether the defendant was competent to stand trial. Hill, 375 Mass. at 54, quoting Rhay, 385 F.2d at 886. Rather, the record reveals an alert, attentive, careful judge keeping his promise to watch the defendant closely, ensure that the defendant was attentive, and ensure a fair trial. Accordingly, we discern no abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

2. Closing argument. The defendant contends that the prosecutor made several errors in her closing argument, which created a substantial risk of a miscarriage of justice. First, he argues that the prosecutor erred in telling the jury that the victim's conflicting statements regarding the location of the abuse were not inconsistent. We disagree. At trial, the victim testified that the sexual assaults occurred in the living room. According to the grandmother and during the forensic interview, however, the victim reported that the abuse occurred in her bed. Defense counsel alerted the jury to this inconsistency in her closing argument. In response, the prosecutor argued that the victim's confusion was understandable, because there was a futon in the living room that converted from a couch to a bed. The prosecutor's comment was brief. Furthermore, the victim had indeed testified that there was a bed in the living room that they “use[d] ․ for a couch.” Viewed in full context, the prosecutor's argument constituted a reasonable inference from the evidence. See Commonwealth v. Carriere, 470 Mass. 1, 22 (2014) (“a prosecutor may argue zealously in support of inferences favorable to the Commonwealth's case that reasonably may be drawn from the evidence”).

Similarly, the prosecutor did not err by arguing that the victim's hesitancy and delayed disclosure stemmed from the fact that the defendant “holds the key to where she lives.” The defendant had testified that he allowed the victim and her mother to temporarily move in with him in his apartment; that he maintained a relationship with the landlord; that he and the victim's mother had been fighting; and that he gave the victim's mother an ultimatum and asked her to move out. In context of the evidence at trial and the arguments made by defense counsel, the prosecutor's statement constituted a reasonable inference.

Next, we agree with the defendant that the prosecutor erred in raising the notion of a “good prejudice,” which she defined as the prejudice “that people do not want to believe that there are people in the world that hurt children,” and that the defendant “does not get the benefit of that prejudice.” The statement was not grounded in any evidence and was not appropriate. Nonetheless, the error did not rise to the level of creating a substantial risk of a miscarriage of justice. First, we do not agree that this statement equated to a direct attack on the presumption of innocence. Second, the judge repeatedly instructed the jurors that closing arguments are not evidence. Third, the judge's instructions on the presumption of innocence were likewise clear, forceful, and unequivocal. Finally, the jury acquitted the defendant of aggravated rape and found the defendant guilty of lesser included charges of indecent assault and battery. See Commonwealth v. Lassiter, 80 Mass. App. Ct. 125, 132 (2011) (that jury acquitted defendant of certain charges suggests they were not swayed by prosecutor's excesses).

Finally, the defendant argues that the prosecutor shifted the burden of proof by asking the rhetorical question, “how does a five-year-old know anything about a man putting his penis into her vagina․” See Commonwealth v. Beaudry, 445 Mass. 577, 581 (2005). As the Commonwealth asserts, the prosecutor's argument, viewed in context, was a proper response to the defendant's claim in closing argument that because the victim did not testify to being in any pain from the incident she was not credible. In any event, even assuming that the argument may have been improper, we discern no substantial risk of a miscarriage of justice for the myriad reasons delineated above. We further note the judge's clear and repeated instructions regarding the burden of proof at trial.4

Judgments affirmed.


2.   The defendant was indicted on four counts of aggravated rape of a child due to age difference and one count of indecent assault and battery on a child under fourteen. At the close of the Commonwealth's case, the judge allowed the defendant's motion for a required finding of not guilty as to one count of aggravated rape of a child, and as to the count of indecent assault and battery. He also allowed the motion as to so much of a second count alleging aggravated rape of a child, but submitted the lesser included offense of indecent assault and battery on a child under fourteen to the jury. The jury returned verdicts of guilty as to the lesser included offenses of indecent assault and battery on a child under fourteen.

3.   General Laws c. 123, § 15 (a), provides that“[w]henever a court of competent jurisdiction doubts whether a defendant in a criminal case is competent to stand trial or is criminally responsible by reason of mental illness or mental defect, it may at any stage of the proceedings after the return of an indictment or the issuance of a criminal complaint against the defendant, order an examination of such defendant to be conducted by one or more qualified physicians or one or more qualified psychologists.”

4.   Other arguments made by the defendant but not discussed have been considered. We find nothing in them that merits further discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

Was this helpful?

Thank you. Your response has been sent.

Copied to clipboard