COMMONWEALTH vs. ROBERT A. BAILEY.

SMITH, J. The defendant was convicted by a jury on an indictment for rape and on so much of an indictment for armed burglary that charged breaking and entering in the nighttime with intent to commit a felony and assault upon an occupant. The victim testified that during the early morning hours of February 17, 1980, while in her room she was forced by the defendant to submit to six acts of sexual intercourse. The defendant admitted in his testimony that the victim was a stranger to him but maintained that she consented to the acts. On appeal, the defendant alleges that

Page 105

(1) the trial judge committed error in permitting the prosecuting attorney to ask a series of questions of the defendant in the course of cross-examination relative to his authorship of a certain letter sent from the jail to the district attorney's office; and (2) the prosecutor engaged in prejudicial final argument. We affirm the convictions.

1. The "skinner" letter issue. Prior to the defendant's taking the stand, the prosecutor had in her possession a letter sent to the district attorney's office, purportedly signed by the defendant and by individuals named Gosselin and Partridge, in which the signatories called themselves "skinners". Shortly after receiving the letter, the prosecutor showed the letter to defense counsel. On cross-examination, the defendant testified, without objection, that the expression "skinner" meant "rapist" and that he had heard the expression in jail. He denied that he was a "skinner" and further testified that he did not recognize the letter although he admitted that he knew Gosselin and Partridge. [Note 1] Without objection, the defendant testified that he had known Gosselin and Partridge for about two or three months. At that juncture, the judge refused a request by the prosecutor to have the defendant write his name on the blackboard. At the bench, the prosecutor requested that the judge give her an opportunity to bring the other alleged signatories from the jail in order to have them testify. The judge granted the request, and defense counsel moved for a mistrial on the ground that the prosecutor had intentionally asked questions knowing that the answers would indicate that the defendant was in jail. The judge denied the request and shortly afterwards gave the instructions outlined

Page 106

in the margin in regard to the role of negative answers to leading questions. [Note 2]

The objection and the request for a mistrial were not timely. It is the rule in this Commonwealth that when something occurs during the course of a civil or criminal trial which constitutes the basis for one side to request a mistrial "it must be called to the attention of the judge immediately, or when the aggrieved party first learns of it, in order that the judge may take whatever action may be required in the circumstances." Commonwealth v. DiPietro, 373 Mass. 369, 387 (1977). Commonwealth v. Homer, 235 Mass. 526, 536 (1920). Defense counsel knew of the "skinner" letter prior to the cross-examination and an inference could have been drawn that the prosecutor would attempt to use the letter during cross-examination. [Note 3] See Commonwealth v. Spann, 383 Mass. 142, 149 (1981) ("In the case before us, the inference was obvious that the prosecution would seek to prove that the ring was similar to one normally worn by the victim"). Appellate counsel argues that, by posing a series of questions to the defendant, the prosecutor conveyed to the jury the "innuendo" that the defendant had signed and mailed a letter to the prosecution describing himself as a "skinner," a jailhouse term for "rapist," and that these questions unduly prejudiced the defendant's right to a fair trial. This ground was never argued to the trial judge and need not be considered by us. See Commonwealth

Page 107

v. Johnson, 374 Mass. 453, 458 (1978). [Note 4] Because the objection to the "series" of questions was not timely we will not consider it. Furthermore, a substantial risk of a mis-carriage of justice does not exist in this case. The prosecutor had in her possession a letter purportedly signed by the defendant. Therefore, there was a foundation for the questions. See Commonwealth v. White, 367 Mass. 280, 284 (1975) ("`the attempt to communicate impressions by innuendo through questions which are answered in the negative . . . when the questioner has no evidence to support the innuendo, is an improper tactic which has often been condemned by the courts'"). Appellate counsel admits in his brief that under the facts of this case the "skinner" letter, had the defendant admitted writing it, might have been received in evidence as an admission. Therefore, the questioning was permissible in that it "did not relate to extraneous or immaterial matters." Commonwealth v. White, 367 Mass. at 284-285. [Note 5] In addition, the judge's reasonably prompt instructions were more than adequate in placing the role of the negative answers to leading questions in proper perspective. [Note 6]

2. Claim of error in prosecutor's argument. At the close of the prosecutor's argument, defense counsel objected to

Page 108

the argument on two grounds: (1) the argument implied that the defendant had to prove "something"; and (2) the argument appealed to the emotions of the jury. The words to which the defendant objected came at the end of the argument and are stated in the margin. [Note 7] After the defendant made known his objections, the judge immediately gave his charge to the jury. We note that at the beginning and near the close of his instructions the judge, using forceful words, stated that the defendant does not have to prove anything. Also the judge emphasized that "emotion" plays no part in reaching a verdict. We are satisfied that the judge's instructions removed any taint, if there was any, from the prosecutor's closing argument. We also note that the defendant, at the close of the judge's instructions, did not renew his objections, which indicates to us that his complaints had been corrected to his satisfaction. Commonwealth v. Grammo, 8 Mass. App. Ct. 447, 457 (1979).

Judgments affirmed.