NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-7
COMMONWEALTH
vs.
ANTHONY SHERLOCK.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant challenges his convictions, by jury, of rape,
as a lesser included offense of aggravated rape; and assault and
battery, as a lesser included offense of assault and battery
causing serious bodily injury.1 He maintains that the trial
judge erred by excluding deoxyribonucleic acid (DNA) evidence
and that the prosecutor made impermissible statements during
closing argument. We affirm.
Background. We summarize the relevant facts as the jury
could have found them, leaving some for further discussion. In
early 2017, the victim did not have stable housing and was
suffering from mental health issues. While undergoing inpatient
mental health treatment she met the defendant, also a patient,
1The jury returned a not guilty verdict on the charge of kidnapping. and the two began a consensual sexual relationship. She left
the inpatient facility with the defendant before her discharge
date. She did not bring her psychiatric medications and
testified that the symptoms of withdrawal from those
medications, which occurred over a four to five-week period,
included irritability, poor decision-making, and poor judgment.
After spending the first night at a shelter in Providence,
the two encountered the victim's parents, who had come to take
the victim home. The victim stayed with the defendant because
he threatened to hurt her family if she left. In the following
days, the defendant took money, a cellular phone, and gift cards
that the victim's mother had left her and took the victim by
train to Cambridge. There, they stayed in the dirt cellar of an
apartment building, sleeping on the floor, for approximately two
weeks. During this time, the defendant was violent toward the
victim, putting his hands around her throat, punching her in the
back of the head (sometimes to the point of unconsciousness) and
calling her names. The victim testified that the defendant did
not leave her alone during the time in Cambridge.
While in Cambridge, the victim had sexual intercourse with
the defendant every day, sometimes multiple times a day. They
had oral, anal, and vaginal intercourse. The defendant did not
use a condom or other protection. The victim did not always
want to have intercourse with the defendant, and sometimes told
2 him so. On other occasions, even though she was unwilling, she
did not say "no" out of fear of the defendant's reactions, which
had included his yelling at her, pushing her, putting his hands
around her throat, and having intercourse with her despite her
objections. She testified that she never wanted to have anal
intercourse, that it hurt her, and that the defendant forced her
to engage in anal intercourse by grabbing and holding her.
After contacting her mother, the victim was approached by
Cambridge police in the public library and was taken to a
hospital because she complained that her head hurt. The next
day, after she had slept, showered, and changed her clothes, the
victim went to a different hospital for a sexual assault
examination.
Discussion. 1. The DNA evidence. The defendant moved in
limine to admit the findings of the DNA analysis, specifically,
that the testing "did not detect any sperm cells on any of the
vaginal, anal, perianal or oral swabs," and that while DNA
evidence retrieved from fabric from the crotch area of the
victim's underpants revealed "a seminal fluid protein . . .
indicating the presence of semen," screening tests for a seminal
fluid enzyme were negative and sperm cells were not detected. A
DNA testing report of the same fabric revealed female DNA that
matched the victim's profile. It also revealed male DNA that
3 was "a mixture of at least four male contributors" and "not
suitable for comparison due to the quality of the profile."
The defendant sought to introduce this evidence as relevant
to show (1) "that [the victim's] physical condition at the time
of the examination [was] inconsistent with the allegations
against the Defendant" –- that is, had she been vaginally,
orally, and anally raped, as she reported, there should have
been biological material on her body -- and (2) "evidence of
multiple male DNA contributors tends to negate the
Commonwealth's assertion that [the victim] was held captive and
incommunicado." The defendant maintained that "evidence that
[the victim] had physical contact with at least three
individuals other than the Defendant" was relevant to assessing
the claim that the defendant did not allow her any freedom,
which, in turn, was relevant to the kidnapping charge. Although
the defendant summonsed the Commonwealth's criminalist and
analyst to the trial, he proffered no expert report or other
offer of proof as to what testimony they would give about the
DNA evidence.2
"We review evidentiary rulings for abuse of discretion,"
Commonwealth v. Denton, 477 Mass. 248, 250 (2017), reversing
2 The defendant was permitted funds to retain a forensic serologist, but produced no report or affidavit, and the serologist was not called as a trial witness.
4 only if the judge made "a clear error of judgment in weighing
the factors relevant to the decision . . . such that the
decision falls outside the range of reasonable alternatives"
(quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014). "All evidence must meet a threshold test of
relevancy such that it has a 'rational tendency to prove an
issue in the case'" (citation omitted). Commonwealth v. Ng, 491
Mass. 247, 264 (2023).
"Even relevant evidence may be inadmissible, however, where
its probative value substantially is outweighed by the danger of
unfair prejudice." Ng, 491 Mass. at 264. "A judge generally is
accorded substantial discretion in deciding whether evidence is
relevant, and if so, whether it nevertheless should be excluded
as less probative than prejudicial." Commonwealth v. Mattei,
455 Mass. 840, 850 (2010). Such deference applies to a judge's
decisions to admit or exclude DNA test results. Id.
Where DNA testing reveals a positive result, test results
are not admissible "without telling the jury anything about the
likelihood of that match occurring" (citation omitted). Mattei,
455 Mass. at 850. "The same reasoning applies to evidence that
a DNA test, although resulting in less than a complete 'match,'
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-7
COMMONWEALTH
vs.
ANTHONY SHERLOCK.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant challenges his convictions, by jury, of rape,
as a lesser included offense of aggravated rape; and assault and
battery, as a lesser included offense of assault and battery
causing serious bodily injury.1 He maintains that the trial
judge erred by excluding deoxyribonucleic acid (DNA) evidence
and that the prosecutor made impermissible statements during
closing argument. We affirm.
Background. We summarize the relevant facts as the jury
could have found them, leaving some for further discussion. In
early 2017, the victim did not have stable housing and was
suffering from mental health issues. While undergoing inpatient
mental health treatment she met the defendant, also a patient,
1The jury returned a not guilty verdict on the charge of kidnapping. and the two began a consensual sexual relationship. She left
the inpatient facility with the defendant before her discharge
date. She did not bring her psychiatric medications and
testified that the symptoms of withdrawal from those
medications, which occurred over a four to five-week period,
included irritability, poor decision-making, and poor judgment.
After spending the first night at a shelter in Providence,
the two encountered the victim's parents, who had come to take
the victim home. The victim stayed with the defendant because
he threatened to hurt her family if she left. In the following
days, the defendant took money, a cellular phone, and gift cards
that the victim's mother had left her and took the victim by
train to Cambridge. There, they stayed in the dirt cellar of an
apartment building, sleeping on the floor, for approximately two
weeks. During this time, the defendant was violent toward the
victim, putting his hands around her throat, punching her in the
back of the head (sometimes to the point of unconsciousness) and
calling her names. The victim testified that the defendant did
not leave her alone during the time in Cambridge.
While in Cambridge, the victim had sexual intercourse with
the defendant every day, sometimes multiple times a day. They
had oral, anal, and vaginal intercourse. The defendant did not
use a condom or other protection. The victim did not always
want to have intercourse with the defendant, and sometimes told
2 him so. On other occasions, even though she was unwilling, she
did not say "no" out of fear of the defendant's reactions, which
had included his yelling at her, pushing her, putting his hands
around her throat, and having intercourse with her despite her
objections. She testified that she never wanted to have anal
intercourse, that it hurt her, and that the defendant forced her
to engage in anal intercourse by grabbing and holding her.
After contacting her mother, the victim was approached by
Cambridge police in the public library and was taken to a
hospital because she complained that her head hurt. The next
day, after she had slept, showered, and changed her clothes, the
victim went to a different hospital for a sexual assault
examination.
Discussion. 1. The DNA evidence. The defendant moved in
limine to admit the findings of the DNA analysis, specifically,
that the testing "did not detect any sperm cells on any of the
vaginal, anal, perianal or oral swabs," and that while DNA
evidence retrieved from fabric from the crotch area of the
victim's underpants revealed "a seminal fluid protein . . .
indicating the presence of semen," screening tests for a seminal
fluid enzyme were negative and sperm cells were not detected. A
DNA testing report of the same fabric revealed female DNA that
matched the victim's profile. It also revealed male DNA that
3 was "a mixture of at least four male contributors" and "not
suitable for comparison due to the quality of the profile."
The defendant sought to introduce this evidence as relevant
to show (1) "that [the victim's] physical condition at the time
of the examination [was] inconsistent with the allegations
against the Defendant" –- that is, had she been vaginally,
orally, and anally raped, as she reported, there should have
been biological material on her body -- and (2) "evidence of
multiple male DNA contributors tends to negate the
Commonwealth's assertion that [the victim] was held captive and
incommunicado." The defendant maintained that "evidence that
[the victim] had physical contact with at least three
individuals other than the Defendant" was relevant to assessing
the claim that the defendant did not allow her any freedom,
which, in turn, was relevant to the kidnapping charge. Although
the defendant summonsed the Commonwealth's criminalist and
analyst to the trial, he proffered no expert report or other
offer of proof as to what testimony they would give about the
DNA evidence.2
"We review evidentiary rulings for abuse of discretion,"
Commonwealth v. Denton, 477 Mass. 248, 250 (2017), reversing
2 The defendant was permitted funds to retain a forensic serologist, but produced no report or affidavit, and the serologist was not called as a trial witness.
4 only if the judge made "a clear error of judgment in weighing
the factors relevant to the decision . . . such that the
decision falls outside the range of reasonable alternatives"
(quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014). "All evidence must meet a threshold test of
relevancy such that it has a 'rational tendency to prove an
issue in the case'" (citation omitted). Commonwealth v. Ng, 491
Mass. 247, 264 (2023).
"Even relevant evidence may be inadmissible, however, where
its probative value substantially is outweighed by the danger of
unfair prejudice." Ng, 491 Mass. at 264. "A judge generally is
accorded substantial discretion in deciding whether evidence is
relevant, and if so, whether it nevertheless should be excluded
as less probative than prejudicial." Commonwealth v. Mattei,
455 Mass. 840, 850 (2010). Such deference applies to a judge's
decisions to admit or exclude DNA test results. Id.
Where DNA testing reveals a positive result, test results
are not admissible "without telling the jury anything about the
likelihood of that match occurring" (citation omitted). Mattei,
455 Mass. at 850. "The same reasoning applies to evidence that
a DNA test, although resulting in less than a complete 'match,'
could not exclude a particular individual as a potential
contributor," because "[w]ithout reliable accompanying evidence
. . ., the jury have no way to evaluate the meaning of the
5 result." Id. at 851-52. "We have repeatedly acknowledged the
importance of statistical analyses to explain DNA matches to the
jury, concluding that the probative value of a DNA match is
negligible without such analysis." Commonwealth v. Lester, 486
Mass. 239, 246 (2020).
Here, the DNA findings were before the judge, but the
necessary accompanying evidence -- whether in the form of an
expert report, an offer of proof, or other proffer -- was
missing. The defendant maintains that he had experts available
to testify at trial, but this argument misses the mark. As the
cases recognize, DNA evidence is not self-explanatory. Without
an expert interpreter, the judge could not be expected to know
what the test results meant -- for example, how long this
biological material would be expected to persist on the victim's
body; whether it would still be there after she showered; or
whether its presence on the fabric samples might be affected if
her underpants were washed. Without this information, the judge
could not understand the probative value of the DNA evidence or
assess whether its probative value outweighed its prejudicial
effect. See, e.g., Commonwealth v. Lally, 473 Mass. 693, 704-
705 (2016) (nonexclusive Y-chromosome short tandem repeat method
testing results admissible where DNA analyst provided needed
6 statistical context).3 We cannot conclude that, on the record
available to her, the judge made a clear error of judgment in
excluding this evidence.
2. The prosecutor's closing argument. In analyzing a
claim of an improper closing argument, we review for prejudicial
error those statements as to which the defendant objected,
Commonwealth v. Rosario, 430 Mass. 505, 515 (1999), and, as to
the others, we review to determine whether any error created a
substantial risk of a miscarriage of justice. Commonwealth v.
Alphas, 430 Mass. 8, 20 (1999). "[T]he prosecutor's remarks
must be viewed in light of the 'entire argument, as well as in
light of the judge's instruction to the jury and the evidence at
trial.'" Commonwealth v. Rodriguez, 437 Mass. 554, 565 (2002),
quoting Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984).
a. Burden-shifting. The defendant challenges four
sections containing multiple statements by the prosecutor in
closing as impermissibly shifting the burden of proof to the
defendant. These statements responded to defense counsel's
closing argument, which focused -– as did much of the trial
3 In a rape case, "[e]vidence of specific instances of a victim's sexual conduct . . . shall not be admissible," subject to very limited exceptions, and such evidence is admissible "only after an in camera hearing on a written motion for admission of same and an offer of proof." G. L. c. 233, § 21B. Here, as described above, the defendant made no offer of proof. Thus, the proffer of DNA evidence failed to meet the requirements for admission under the rape shield statute.
7 strategy –- on challenging the victim's credibility. The
defendant objected to the first, seeking a curative instruction,
which was declined by the trial judge, and objected to the third
and fourth.
We discern no error in the judge's rulings. "A prosecutor
may fairly respond to an attack on the credibility of the
Commonwealth's witnesses." Commonwealth v. Monzon, 51 Mass.
App. Ct. 245, 253 (2001). In so doing, however, "the prosecutor
may not shift the burden of proof or argue that the defendant
has any affirmative duty to prove his innocence." Commonwealth
v. Fernandes, 478 Mass. 725, 741 (2018).
The first of the objected-to sections included the
statement that it was "the defendant who is on trial here, not
[the victim]." This responded to the defense closing, of which
counsel devoted a substantial portion to questioning the
victim's credibility. There was no burden shifting where the
prosecutor reoriented the jury to the task at hand and responded
to attacks on the victim's credibility. See Commonwealth v.
Howell, 49 Mass. App. Ct. 42, 51 (2000) (permissible, though
"unnecessary," to note that witness was "not on trial here").
The second, third, and fourth sections similarly responded to
the defense strategy; each framed the jurors' task as assessing
whether the victim would contrive her testimony and, if she had,
what her motive was, and whether she would have acted or
8 testified as she had, were she fabricating. A prosecutor may
"respond to the defense argument and also . . . comment on the
. . . weakness of the defense, as long as argument is directed
at the defendant's defense and not at the defendant's failure to
testify" (quotations and citation omitted). Commonwealth v.
Witkowski, 487 Mass. 675, 686 (2021). "Rhetorical questions
commenting on the evidence are not improper." Fernandes, 478
Mass. at 742. See Commonwealth v. Flint, 81 Mass. App. Ct. 794,
807 (2012). Given the defense focus on the victim’s credibility
and the plausibility of her testimony, it was not error to
permit the prosecutor to make these statements in closing.
Furthermore, "[w]e consider statements made during closing
argument in the context of the whole argument, the evidence
admitted at trial, and the judge's instructions to the jury"
(quotation and citation omitted). Lester, 486 Mass. at 247.
The jury were properly instructed that they were to determine
"how much of a witness's testimony to believe and how much
weight to give it." Both before and after closing arguments,
the judge instructed the jury that "the burden of proof is, and
remains always, on the Commonwealth," that "it is not up to the
defendant to prove that he is innocent," and that "the defendant
does not have to prove anything to you here." "Where the judge
properly instructed the jury, we must presume that the jury
9 understood th[ose] instruction[s]" (quotation and citation
omitted). Id. at 248.
b. Vouching. "Vouching consists in the prosecutor
'explicitly or implicitly . . . indicat[ing] that he or she has
knowledge independent of the evidence before the jury verifying
a witness's credibility,'" and is impermissible. Commonwealth
v. Grier, 490 Mass. 455, 470 (2022), quoting Commonwealth v.
Ciampa, 406 Mass. 257, 265 (1989).
The defendant's vouching claims relate to multiple passages
in the closing. In each, the prosecutor commented on aspects of
the victim's testimony. Each responded to attacks on her
credibility. The challenged statements can broadly be
categorized as (1) the prosecutor’s questioning the victim's
motive to, or likelihood of, fabricating her experiences with
the defendant and, therefore, her testimony, and (2) attempts to
rebut attacks based on inconsistencies in the victim's
testimony.
The first category of argument properly responded to the
defense claim, made both in opening and closing, that "the only
thing [the defendant] did wrong was get between an angry mama
bear and her cub." It was a centerpiece of the defense that the
victim fabricated the assaults to appease or assuage her mother.
Responding to this claim was well within the bounds of proper
closing argument, and we see no error in the judge's conclusion
10 that the prosecutor did not vouch for the victim in so doing.
See, e.g., Grier, 490 Mass. at 470-471 (not improper for
prosecutor to note that witness was "not on trial" where defense
closing sought to discredit witness); Commonwealth v. Rosario,
460 Mass. 181, 190-191 (2011) (prosecutor's response to defense
counsel's focus on testimonial inconsistencies, which focused on
witness testimony, was not vouching); Commonwealth v. Rivera, 52
Mass. App. Ct. 321, 325 (2001), quoting Commonwealth v. Freeman,
430 Mass. 111, 119 (1999) (where "the complainant's credibility
was at issue, the prosecutor was entitled to 'argue from the
evidence why a witness should be believed'").
Another organizing principle of the defense closing was
that truthful histories remain consistent over time, while
untruthful ones do not. Counsel built the closing around
contrasting versions of events that were "internally consistent"
with those that were not, and asking the jury to consider
whether versions of events were "externally consistent."
Counsel employed this framework to discredit the victim's
credibility. The second category of challenged statements
responded to this narrative. The prosecutor was permitted to
respond by offering the jury an alternate framework for
considering inconsistencies in the victim’s testimony. "Where
credibility is at issue, it is certainly proper for counsel to
argue from the evidence why a witness should be believed."
11 Commonwealth v. Raposa, 440 Mass. 684, 694-695 (2004), quoting
Commonwealth v. Thomas, 401 Mass. 109, 116 (1987).
None of the challenged passages reveals the prosecutor
"'explicitly or implicitly . . . indicat[ing] that he or she has
knowledge independent of the evidence before the jury verifying
a witness's credibility'" (citation omitted). Grier, 490 Mass.
at 470. There was no vouching, and no error.
Judgments affirmed.
By the Court (Hand, Hershfang & Brennan, JJ.4),
Assistant Clerk
Entered: April 9, 2024.
4 The panelists are listed in order of seniority.