Commonwealth v. Anthony Sherlock.

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

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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

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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.

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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

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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

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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.

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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

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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

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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

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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."

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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.

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