Appeals Court (October 6, 2006)

The Commonwealth may not imply that the defendant tailored his testimony to what he learned in discovery, and the Commonwealth may not argue in closing that the defendant's exculpatory version of events should be disbelieved because he did not tell his version to the police prior to trial.

The defendant was convicted of raping his neighbor. Six days after the rape, when questioned at the police station, the defendant denied any knowledge of the rape and offered an alibi. Six years later, based on a tip, the police were able to match the defendant's fingerprints to those found at the scene, as well as matching his DNA to that from the victim's rape kit.

For the first time on appeal, the defendant claimed that the prosecutor's cross-examination of him and her closing argument violated his right to prepare for trial, and his right to remain silent. In Commonwealth v. Person, 400 Mass. 136 (1987), the SJC held that prosecutors may not argue that the defendant who remained silent before trial tailored his testimony to the evidence offered at trial against him. Here, the Appeals Court extended that rule to the prosecutor's unobjected-to line of questioning relating to his knowledge of the evidence gained through discovery. Even though the prosecutor made no mention of this in her closing argument, the court concluded that it was "error" to invite the inference that the defendant had conformed his testimony falsely to fit the evidence against him.

The Appeals Court also concluded that the prosecutor's unobjected-to cross-examination of the defendant and her unobjected-to closing argument relative to him not going to the police with his side of the story prior to trial was "error." The court held that Doyle v. Ohio, 426 U.S. 610 (1976) (improper to impeach defendant with his post-Miranda silence) was inapplicable because there was no evidence that the defendant ever received Miranda or that he elected to remain silent. Instead, the court relied on a defendant's 19th century common law right to remain silent while in custody, which the court found to be supported by the 5th Amendment and Article 12, as well as a line of cases based on Doyle.

The court concluded that the "errors," which went to the "heart of the defense," when coupled with a case that presented a "duel of credibility," and the judge's failure to sue sponte give a curative instruction, a substantial risk of a miscarriage of justice was created. The Commonwealth is seeking further appellate review.