Commonwealth v. Jeffrey S. Vigiard.

Opinion

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-874

COMMONWEALTH

vs.

JEFFREY S. VIGIARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Jeffery S. Vigiard, appeals from his

convictions, after a jury trial in the Superior Court, of

aggravated rape, G. L. c. 265, § 22 (a), witness intimidation,

G. L. c. 268, § 13B, assaultive burglary, G. L. c. 266, § 14,

and breaking and entering with the intent to commit a felony,

G. L. c. 266, § 16. We conclude that an improperly worded

statement in the Commonwealth's closing argument was not

prejudicial and that there was no significant error in the

prosecutor's recitation of the evidence. Further concluding

that the trial judge acted within his discretion in excluding

evidence (1) that the defendant asked for deoxyribonucleic acid

(DNA) testing where the defendant failed to follow through in a

timely manner with his request; and (2) that a man matching the

victim's vague description of the perpetrator was found intoxicated a few blocks from the location of and two months

prior to the incident, we affirm.

1. Background. The victim was house sitting for her aunt

and cousin when she woke up in the middle of the night to a man

standing in the bedroom. She started to scream, and the man

"grabbed [her] by [her] mouth and covered [her] mouth with his

[sock-covered] hand." He told her to "be quiet" and to "do what

he said or he was going to kill" her. She "begged him not to

hurt [her] or [her baby]," who was sleeping in the room.

The man told the victim to keep her eyes closed, so she put

her arm over her eyes. He proceeded to digitally rape her;

touch, lick, and suck her breasts; lick around her vagina; and

force her to perform fellatio on him. While the victim was

performing fellatio, she removed her arm from over her eyes and

noticed the man's white skin, dirty white T-shirt, and white

underwear. She also smelled his odor of corn chips and old

alcohol.

The man vaginally raped the victim then forced her to

perform fellatio on him again. He ejaculated in her mouth, on

her "chest[,] and in [her] hair," and said something in what

sounded to her like Spanish.

The man wiped off the victim's chest and private parts with

a sock. He told her that "if [she told] anybody about what

happened he would find out because he knows people on the police

2 force and that he would come back and kill everybody in that

house." He also told her that she could not leave the house

that night, and then he left.

The victim waited ten minutes, put on a sweatshirt and her

cousin's sweatpants, left, and contacted the police from a

nearby gas station.

Police took the victim to the emergency room, where a rape

kit was collected. The victim provided statements to the police

at both the hospital and later at the police station.

The rape kit swab of the victim's hair had the largest

sample of sperm cells, and those cells matched the defendant's

DNA profile with a microscopic probability of matching another

random individual's profile. The swabs of the victim's breasts

and abdomen each had a single sperm cell that was not tested for

a DNA profile. There was also a single sperm cell in the crotch

area of the sweatpants worn by the victim, which was not tested

for a DNA profile, but the victim's vaginal swab was negative

for sperm cells and seminal fluid. The victim's oral swab was

negative for sperm cells and seminal fluid, and the victim's

retainer was never tested.

The defendant's theory was that his semen got on a sock

that the rapist used during the assault. The method by which

the defendant theorized that his semen got on the sock need not

3 be recounted here, except to say that it was inherently

implausible and the jury would likely have been skeptical of it.

2. Closing argument. "A prosecutor must limit comment in

closing statement to the evidence and fair inferences that can

be drawn from the evidence." Commonwealth v. Lugo, 89 Mass.

App. Ct. 229, 234 (2016), quoting Commonwealth v. Cole, 473

Mass. 317, 333 (2015). "Because the line separating . . .

inference [and speculation] is often a fine one, 'we must and do

recognize that closing argument is identified as argument.'"

Commonwealth v. Mattei, 90 Mass. App. Ct. 577, 582 (2016),

quoting Commonwealth v. Bresilla, 470 Mass. 422, 437-438 (2015).

We review the prosecutor's remarks "in the context of the entire

argument, and in light of the judge's instruction to the jury,

and the evidence at trial." Commonwealth v. Sanders, 101 Mass.

App. Ct. 503, 511 (2022), quoting Commonwealth v. Braley, 449

Mass. 316, 328-329 (2007).

a. DNA testing. In response to the defendant's argument

that the Commonwealth should have tested additional DNA samples,

the prosecutor explained in detail why the DNA on the sweatpants

could not have been left by the rapist. He then argued,

"[The defense attorney] can talk all he wants about the single sperm cells and shouldn't we have tested them but the reality is, they hold no evidentiary value. We're going to test the things that are related to what occurred, aren't we? They're not going to tell us anything, at least something that we don't already know. It's not just what

4 this biological material is, it's where it's found that's relevant, isn't it?"

Although "[t]he prosecutor was entitled to offer a response to

defense counsel's closing argument," Mattei, 90 Mass. App. Ct.

at 583, quoting Bresilla, 470 Mass. at 438, here, as the

Commonwealth acknowledged at oral argument, the prosecutor's

argument was poorly worded. "Because the defendant objected to

the argument at trial, we review for prejudicial error."

Commonwealth v. Andrade, 468 Mass. 543, 551 (2014). There was

none.

Although the prosecutor's assertion that the single sperm

cells "hold no evidentiary value" was significantly overstated,

and his use of the first person plural pronoun was ill-advised

in this context, the core of the prosecutor's argument was

proper and based in the evidence. The prosecutor was entitled

to remind the jury that a forensic scientist testified that the

best sample to test was the sperm on the victim's hair because

the single sperm cell samples found elsewhere would be "a

limited amount to work with." Furthermore, the prosecutor was

entitled to argue that the single sperm cell found in the crotch

area of the sweatpants worn by the victim was probably not from

the rape because the defendant did not ejaculate into the

victim's vagina and the victim's vaginal and external genital

swabs were negative for sperm cells. The jury would have

5 understood the prosecutor's argument in the context it was

offered as an argument that the best evidence had been tested.

b. Evidence recitation. The defendant challenges three

portions of the prosecutor's closing argument as asserting facts

not in evidence. See Commonwealth v. Goddard, 476 Mass. 443,

449 (2017) (prosecutor may not "refer to facts not in evidence

in a closing argument"). "Because the defendant did not object

to [these portions of] the prosecutor's closing statement at

trial, we review [any error] for a substantial risk of a

miscarriage of justice." Commonwealth v. Holguin, 101 Mass.

App. Ct. 337, 341 (2022), quoting Commonwealth v. Proia, 92

Mass. App. Ct. 824, 835 (2018). There was no substantial risk

of a miscarriage of justice.

First, the prosecutor stated that "[the victim] told you

[that the perpetrator] was sp[ea]king with what sounded like a

fake Spanish accent, a claim that she repeated to the detectives

at the hospital, a claim she repeated in her statement and on

the stand, speaking with what sounded like a fake, Spanish

accent." This assertion was supported by the trial testimony.

At trial, the two detectives who spoke with the victim at the

hospital testified that the victim said that the perpetrator

"talked in an accent but [she] felt that he was faking the

accent," and "spoke broken English with a Spanish accent

although she thought the accent was fake." Additionally, the

6 victim testified that "[a]t some point [she] talked to an

officer or a detective somewhere along those lines and [she]

told them it sounded like it was someone using a fake accent to

cover -- like to change their voice at some point." The

prosecutor could permissibly infer and argue that the victim

told the detectives about the fake accent at the hospital and in

her subsequent statement to the police. See Commonwealth v.

Rakes, 478 Mass. 22, 45 (2017) (prosecutor may "zealously argue

in favor of those inferences favorable to his or her case").

Second, the prosecutor said, "[the defense attorney] wants

you [to] believe that nobody noticed in [sic] matted hair. [The

victim] didn't say anything about this matted hair. Well, you

heard her testify. You heard her testify about where the person

ejaculated, where that semen went." This statement was

supported by the victim's testimony that the perpetrator

"ejaculated in [her] mouth . . . [o]n [her] chest and in [her]

hair," and that she "assum[ed] [that she] said that to [the

nurse]."

Third, the prosecutor incorrectly referred to "retesting"

the victim's retainer instead of "testing" it. The prosecutor

said,

"What did the criminalist tell us about the oral swabs of [the victim]'s mouth? Negative for semen, negative for sperm cells. Did you hear testimony that she consumed a drink prior to having this examination starting? What are

7 we going to gain from retesting the retainer if her mouth is negative?"

Here, "retesting" was an inconsequential slip of the tongue, and

the jury would have understood it as such. Multiple witnesses

testified at trial to the undisputed fact that the retainer was

never tested. This slip of the tongue created no substantial

risk of a miscarriage of justice. See Commonwealth v. Sleeper,

435 Mass. 581, 596 (2002) ("lapses [in prosecutor's closing

argument] were inconsequential").

3. Excluded Bowden evidence. "Defendants have the right

to base their defense[s] on the failure of police adequately to

investigate a [crime]." Commonwealth v. Martinez, 487 Mass.

265, 270 (2021), quoting Commonwealth v. Phinney, 446 Mass. 155,

165-166 (2006). "From this evidence, the defendant may pursue a

so-called Bowden defense, arguing that the jury should 'find a

reasonable doubt' because 'the investigation was careless,

incomplete, or so focused on the defendant that it ignored leads

that may have suggested other culprits.'" Commonwealth v.

Grier, 490 Mass. 455, 474 (2022), quoting Commonwealth v.

Alvarez, 480 Mass. 299, 316 (2018). See Commonwealth v. Bowden,

379 Mass. 472, 485-486 (1980). "A defendant does not, however,

have an unfettered right to elicit evidence regarding the

adequacy of the police investigation. The admissibility of such

evidence hinges first, and foremost, on its relevance."

8 Commonwealth v. Moore, 480 Mass. 799, 808 (2018). "Bowden

evidence is admissible so long as its probative value is not

substantially outweighed by its prejudicial effect." Id. at 809

n.9.

On appeal, "[w]e review a judge's evidentiary rulings for

an abuse of discretion." Commonwealth v. Andre, 484 Mass. 403,

414 (2020). "We will conclude that there has been an abuse of

discretion only if the judge has '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.'" Commonwealth v. Hammond, 477 Mass.

499, 505 (2017), quoting L.L. v. Commonwealth, 470 Mass. 169,

185 n.27 (2014). There was no error here.

a. Request for additional DNA testing. The trial judge

excluded evidence that the defendant requested additional DNA

testing because a motion judge had allowed the defendant's

motion for funds, the defendant did nothing to pursue additional

DNA testing for three months, then another motion judge withdrew

the funds from the defendant because of the unreasonable passage

of time. Far from supporting the defendant's Bowden defense,

admitting evidence that the defendant had requested additional

DNA testing would have opened the door to the Commonwealth's

presenting evidence about why the defendant did not get the

additional DNA testing, creating a risk that the jury would hold

9 that lack of additional DNA testing against the defendant and in

any event opening up a sideshow. See Commonwealth v. Colon, 482

Mass. 162, 187 (2019), quoting Commonwealth v. Silva-Santiago,

453 Mass. 782, 803 n.25 (2009) ("A Bowden defense . . . is 'a

two-edged sword for the defendant, because it opens the door for

the Commonwealth to offer evidence explaining why the police did

not follow the line of investigation suggested by the

defense'"). Instead, the trial judge properly allowed the

defendant to repeatedly elicit the uncontested fact that some of

the samples were untested, thereby allowing the defendant to

present his Bowden defense.

b. Third-party culprit. "[T]hird-party culprit

information is admissible under a Bowden defense only if the

police had learned of it during the investigation and failed

reasonably to act on the information." Commonwealth v.

Steadman, 489 Mass. 372, 385 (2022), quoting Silva-Santiago, 453

Mass. at 803. "In order for Bowden evidence to be admitted

. . . 'the probative weight of the Bowden evidence [may not]

exceed[] the risk of unfair prejudice to the Commonwealth from

diverting the jury's attention to collateral matters.'"

Commonwealth v. Scott, 470 Mass. 320, 330 (2014), quoting Silva-

Santiago, supra.

Here, the trial judge properly excluded evidence that, two

months prior to the rape, an officer found an intoxicated

10 Hispanic man wearing dirty clothes on the street in front of a

nearby pub. 1 Because the only information that the police had

connecting that man to the incident was that he matched a vague

description provided by the victim, 2 the decision not to further

investigate this man had minimal relevance to the adequacy of

the police investigation but would have unfairly prejudiced the

Commonwealth's case by diverting the jurors' attention. The

judge acted within his discretion in excluding the evidence.

See Commonwealth v. Acevedo, 492 Mass. 381, 392 (2023), quoting

Martinez, 487 Mass. at 271 (victim's drug involvement properly

excluded where defendant sought to argue that police

investigation was inadequate for failure to investigate whether

1 The man was also seen walking on streets near the rape "several" times in the two months preceding the rape. 2 The man was shorter than five feet, ten inches, spoke Spanish

and broken English, and had been "placed in protective custody three or four times" for "[a]lcohol related" offenses.

11 victim was killed by rival drug dealer because that theory "was

'no more than speculation and conjecture'"). 3

Judgments affirmed.

By the Court (Wolohojian, Shin & Ditkoff, JJ. 4),

Clerk

Entered: December 6, 2023.

3 Because we discern only a single error from the issues raised by the defendant, we need not address the defendant's cumulative error argument. 4 The panelists are listed in order of seniority.