COMMONWEALTH vs. JEFFREY FOWLER

LYNCH, J. The defendant, Jeffrey Fowler, was convicted of

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rape of a child with the use of force and of murder in the first degree on theories of extreme atrocity or cruelty, and felony murder. The victim was the two year old daughter of the woman with whom he was living. He raises four issues on appeal, claiming that (1) the trial judge erred in denying the defendant's motion for required findings of not guilty of rape and felony murder because there was insufficient evidence of penetration to convict him of rape; (2) the clerk did not engage in a colloquy allowing each juror to express assent to the felony-murder conviction; (3) the defendant's invocation of his constitutional right to remain silent was impermissible used against him; and (4) because the jury instructions regarding murder in the first degree on the theory of extreme atrocity or cruelty were defective, a substantial likelihood of a miscarriage of justice exists. The defendant further urges that we exercise our power under G. L. c. 278, s. 33E, and either reduce the murder verdict to manslaughter or order a new trial. We affirm his convictions of felony-murder and rape and determine that it is unnecessary to address his conviction of murder on the theory of extreme atrocity or cruelty. We conclude there is no reason to exercise our power under G. L. c. 278, s. 33E.

1. Facts and procedural history. We summarize the evidence in the light most favorable to the Commonwealth, but reserve certain details for the discussion of the issues the defendant raises on appeal. See Commonwealth v. Coonan, 428 Mass. 823, 824 (1999).

The victim's mother and the victim would sometimes sleep at the defendant's apartment. She and the victim had been doing so in the days prior to the child's death. On May 19, 1992, the day before her death, the victim was in good health. She had returned from an overnight visit with her father and spent the day with her mother and various family members and friends. The victim and her mother went to the defendant's apartment and shortly thereafter, at approximately 7:45 P.m., the mother asked the defendant to watch the victim while she went to a tanning salon.

The mother returned and put the victim to bed. After a short time, the mother heard a noise and noticed that the victim felt warm and had vomited. She gave the victim Tylenol and something to drink, and the victim vomited again. The mother told the defendant that she was going to take the child to the doctor, but the defendant told her that there was nothing seriously

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wrong. The victim became sleepy and her mother put her to bed.

The defendant found the victim the next morning in her room and screamed to the mother that she was not breathing. The mother attempted to give her cardiopulmonary resuscitation (CPR). On the way to a hospital, the mother asked the defendant what could have happened, and the defendant said it might be "internal injuries."

The victim was pronounced dead on arrival at the hospital from a blunt impact to her abdomen that occurred within hours of death.' The victim also had bruises on her body that occurred around the time of her death [Note 1]. When the defendant saw her body, he fainted; he also fainted at least one other time while at the hospital. A few days after the victim's death, the defendant told the mother that he would shoot himself in the head if "they try to blame this on me [Note 2]."

At first, the death was ruled as accidentally caused by a seat belt because the victim was in a near collision automobile accident with her mother two days prior to the victim's death. However, in October, 1992, the medical examiner issued a new death certificate in which he listed the manner of death as homicide because a State police crime laboratory reported that swabs taken from the victim's mouth showed the presence of sperm. In November, 1992, the police required the defendant to give blood for deoxyribonucleic acid (DNA) analysis [Note 3]. In December, 1992, the defendant moved to Seattle, Washington.

The analysis showed that the sperm DNA matched the defendant's, and he was arrested in Seattle in April, 1993. After a jury trial and convictions, the trial judge, sua sponte, set aside the guilty verdicts and ordered a new trial because he doubted

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the validity of the Commonwealth's DNA evidence [Note 4]. See Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979). The Commonwealth appealed, and we vacated the judge's order, thus reinstating the jury's verdicts of guilty of murder and rape. See Commonwealth v. Fowler, 425 Mass. 819, 829 (1997). This appeal followed.

2. Sufficiency of the evidence. The defendant argues that, because there was no evidence of injury to the child's mouth, the presence there of sperm was insufficient to prove penetration beyond a reasonable doubt and thus his conviction of rape under G. L. c. 265, s. 22A, could not be sustained. In reviewing a "denial of a defendant's motion for a required finding of not guilty, we inquire whether the evidence, considered in the light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact of the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Coonan, 428 Mass. 823, 828 (1999). Reasonable and possible inferences may be drawn from largely circumstantial evidence. Commonwealth v. Martino, 412 Mass. 267, 272 (1992), and cases cited.

There was sufficient evidence to sustain a conviction of rape. The crime of "unnatural sexual intercourse" with a child includes oral sex. See Commonwealth v. Gallant, 373 Mass. 577, 583 n.5, 584 (1977) (discussing "unnatural sexual intercourse" as applied to various provisions of G. L. c. 265). Penetration can be inferred from circumstantial evidence. See Commonwealth v. Tavares, 27 Mass. App. Ct. 637, 642 (1989) ("Semen, a piece of twig, and dirt found in the victim's vagina" was sufficient evidence to find penetration beyond reasonable doubt); Commonwealth v. Baldwin, 24 Mass. App. Ct. 200, 204-205 (1987) (touching vulva or labia intrusive enough for wrongful penetration of vagina); Commonwealth v. Thomas, 19 Mass. App. Ct. 1, 5 (1984) (sufficient evidence where jury entitled to infer penetration from six year old's testimony that her "privacy" was made to feel bad, by evidence of defendant's lubricating victim's "private parts," and by doctor's testimony about injury to victim's hymen).

In this case, the presence of sperm was enough evidence to

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warrant the inference beyond a reasonable doubt that the victim had been penetrated orally. From the evidence that the child vomited and had something to drink, the jury could reasonably infer that the child had ingested a large amount of semen and that some of it lingered despite her vomiting [Note 5]. See Commonwealth v. Elliot, 430 Mass. 498, 500 (1999). The evidence was sufficient to prove rape beyond a reasonable doubt.

3. Lack of colloquy on felony-murder verdict. The defendant argues that his conviction of felony-murder is a nullity because the jury were not asked unanimously to affirm their verdict. The foreman was asked and did affirm the guilty verdict of felony murder, but the clerk neglected to add, "so say you all," or words to that effect. Immediately prior to this exchange, however, the jury were engaged in the complete colloquy in regard to rape and murder with extreme atrocity or cruelty [Note 6]. Because the defendant did not object to the lack of the colloquy, we review, pursuant to G. L. c. 278, s. 33E, to determine whether a substantial likelihood of a miscarriage of justice exists. See Commonwealth v. Robles, 423 Mass. 62, 72 nn. 15 & 16 (1996) (substantial likelihood of miscarriage of justice standard used where attorney requests polling of jury but did not object to lack of affirmation). See also Commonwealth v. Skinner, 408 Mass. 88, 92 (1990). Cf. Commonwealth v. Nettis, 418 Mass. 715, 717-719 (1994).

The colloquy is a ritual that has developed for the return and recording of a verdict in a criminal case. Commonwealth v. Martell, 407 Mass. 288, 292 & n.4 (1990). See Mass. R. Crim. P. 27 (a), 378 Mass. 897 (1979), and Mass. R. Crim. P. 28 (a), 378 Mass. 898 (1979) (requiring unanimous verdict declared in open court). The colloquy itself is not required by rule or statute.

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See Commonwealth v. Martell, supra; Commonwealth v. Tobin, 125 Mass. 203, 206 (1878) ("settled practice" to use colloquy). Its purpose is to allow jurors to express dissent to the court because "[s]uch an affirmation is the only evidence the court can receive of the free and unanimous assent of the jury to the verdict." Rich v. Finley, 325 Mass. 99, 106 (1949) [Note 7]. Thus, in Rich v. Finley, supra, where one juror died before the jury announced their verdict in open court, the affirmation of the other eleven jurors was held insufficient because the law required that "a verdict can be rendered only by the final concurrence of twelve jurors." Id.

However, in Commonwealth v. Lawson, 425 Mass. 528, 53 1 532 (1997), we allowed a verdict to stand where the clerk read the colloquy but there was no record of the jury's answer. We said that the members of the jury were afforded ample opportunity to express their dissent with each verdict as it was returned. We also said there was sufficient evidence of the jury's affirmation in light of the foreperson's announcement, the clerk's proclamation and colloquy in the presence of the jury in open court, and the notation of guilty on the verdict slip following the colloquy. Id. at 532. In Commonwealth v. Clements, 36 Mass. App. Ct. 205, 206-208 (1994), the Appeals Court upheld a verdict where the clerk initiated a colloquy but failed to ask for the actual verdict.

Unlike Rich v. Finley, supra, in this case, the jury had returned verdicts of guilty of rape and murder in the first degree with extreme atrocity or cruelty. The jury were engaged in the colloquy and all affirmed both verdicts. Following the affirmation on the first two charges, defense counsel asked that the jury be polled and discussed this request with the judge. One of the assistant district attorneys noticed that the clerk had not mentioned the felony-murder conviction. The clerk then asked the jury, "Mr. Foreman, would you please rise again. How say you, Mr. Foreman, on indictment 32464, charging the defendant . . . with murder, as to murder in the first degree committed during the commission of a crime punishable by life imprison-

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ment?" The foreman responded, "Guilty," and the clerk said, "Thank you. Return the verdict slip, please." In these circumstances, we conclude that there was ample opportunity for members of the jury to indicate any lack of assent, and that the failure of the clerk precisely to follow the ritual did not create a substantial likelihood of a miscarriage of justice [Note 8].

Furthermore, a simple objection to the lack of a colloquy would have allowed the judge to remedy the problem. We have noted, in other contexts, that failure to object deprived the judge of the opportunity to correct possible errors through curative instructions. See Commonwealth v. Sherick, 401 Mass. 302, 305 (1987), citing Commonwealth v. Cifizzari, 397 Mass. 560, 579 (1986). See also Commonwealth v. Connors, 18 Mass. App. Ct. 285, 288 (1984) (timely objection to jury instructions would have enabled judge to consider cure) [Note 9].

4. The defendant's silence. The defendant argues that his right to remain silent was improperly used against him. See Commonwealth v. Rivera, 425 Mass. 633, 641-642 (1997), citing Commonwealth v. Teixera, 396 Mass. 746, 752 (1986) ("evidence of a defendant's postarrest, post-Miranda silence cannot be used for any purpose").

As part of her closing, the prosecutor discussed the testimony of a Seattle detective and a special agent of the Federal Bureau of Investigation (FBI), who interviewed the defendant in Seattle on the day of his arrest. The two testified that, after being given his Miranda rights, the defendant chose to speak to the two officers. The defendant was asked how his sperm ended up in the victim's mouth. The defendant told them that the mother had performed oral sex on him on May 19, 1992, the morning of the day before the victim's death, and that the mother kissed

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her baby and transferred the sperm to the victim's mouth. The detective told the defendant that no one was going to believe his story. The detective also testified that at that point, "the defendant seemed to reflect; his eyes kind of teared up; and at that point he said he didn't think he should say anything more" (emphasis added). When the FBI agent testified, he said that, when the detective expressed doubt about the defendant's story, the defendant did not speak further, "[s]o we didn't have an opportunity to clear up a lot of the details and get more specifics" (emphasis added).

In closing argument, the prosecutor drew attention to the statements by saying, "Then at some point . . . a thirty-two year veteran of the Seattle police force says, 'Hey buddy, nobody's going to buy that story. Nobody's going to buy the fact that that semen was in [the mother's] mouth all that time.' What does the defendant do? He stops, thinks, gets a little teary eyed, doesn't point out any discrepancies in what they said" (emphasis added)[ [Note 10].

The defendant argues that admitting the police testimony about his decision not to speak and the prosecutor's comment on his decision to invoke his right to remain silent were reversible errors because they constitute comment on postarrest silence prohibited by Doyle v. Ohio, 426 U.S. 610 (1976). We first must determine whether these incidents were Doyle-type errors and, if they were, we must decide whether they require reversal.

The Commonwealth argues that, because the defendant chose to speak to police on several occasions, he never invoked his right to remain silent, and thus the Doyle case is inapplicable. The Commonwealth's argument overlooks the fact that, once Miranda warnings have been given to an individual, although the individual may make a knowing, voluntary, and intelligent

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waiver of that right, the individual may invoke the right at any time. During questioning, "[i]f the individual indicates in any manner, at any time . . . that he wishes to remain silent, the interrogation must cease." Miranda v. Arizona, 384 U.S. 436, 473-474 (1966) [Note 11]. See id. at 444; Commonwealth v. Cobb, 374 Mass. 514, 518 (1978).

When the defendant was arrested in Seattle, he was given his Miranda rights but indicated his willingness to speak to the detective and FBI agent. However, right after the detective expressed doubt about the defendant's story, the defendant told the two officers that he did not think he should say anything further. The defendant's words were a statement of intent to invoke his right to remain silent. See Commonwealth v. Cobb, supra at 519 ("the response 'What can I say?" appears to us to have . . . indicated an intention to invoke the right to remain silent"). In addition, the fact that the two law enforcement officials in Seattle ceased questioning him after his statement indicates that they believed that the defendant was invoking his right to remain silent.

The Commonwealth argues that the testimony of the two officers contained no Doyle-type error because it falls within the rule established by Commonwealth v. Habarek, 402 Mass. 105, 109-110 (1988). Here the Commonwealth argues that the testimony was necessary to avoid juror confusion as to why the defendant stopped speaking to the officers. However, in Habarek the "testimony on direct examination concerning the defendant's request to end the interrogation was introduced in the context of the entire conversation, and was admitted so as not to leave the jury wondering why the interview ended abruptly. The officer's testimony on redirect examination was properly admitted in response to the inferences left by defense counsel on cross-examination. At no time did the Commonwealth use the defendant's statement as evidence of his guilt, or to impeach an explanation subsequently offered at trial." Id. See Commonwealth v. Waite, 422 Mass. 792, 798

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(1996) (discussing Commonwealth v. Habarek, supra) [Note 12], [Note 13].

In this case, there is no evidence of juror confusion, and the defendant did nothing that could arguably be said to create such confusion as in Commonwealth v. Habarek, supra. Furthermore, if juror confusion did exist, it certainly would not be necessary for two officers to testify as to the reason the interview terminated [Note 14]. We conclude it was a Doyle-type error for the two officers to mention that the defendant chose to invoke his right to remain silent.", See Commonwealth v. Cobb, supra at 520 (eliciting testimony concerning defendant's statement indicating intention to invoke his right to remain silent is "grave constitutional error").

Equally troublesome is the prosecutor's use of the defendant's statement of his intention to remain silent in her closing argument. We disagree with the Commonwealth's contention that, in her closing, the prosecutor stopped short of commenting on the defendant's right to remain silent. Although she did not explicitly say "he remained silent," the clear implication of her statement that the defendant "doesn't point out any discrepancies in what they said" was that, if the defendant were innocent,

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he would have done so, but instead chose to invoke his right to stop talking [Note 15]. Thus, the prosecutor's closing argument also constituted a Doyle-type error [Note 16].

We, therefore, must now decide whether these errors require reversal. We first determine whether these errors were raised below. Although the defendant did object to the testimony of the Seattle detective, the objections were not based on the defendant's right to remain silent [Note 17]. When the FBI agent testified about the same incident, defense counsel did object, but of-

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fered no ground [Note 18]. Similarly, defense counsel did not object to that aspect of the prosecutor's closing that referred to the defendant's right to remain silent, but rather, at a later juncture, objected to the prosecutor's injecting personal opinion into the closing [Note 19].

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Because the defendant did not properly object to the witnesses' statements or the closing argument, we review the errors to determine whether a substantial likelihood of a miscarriage of justice exists [Note 20]]. See Commonwealth v. Johnson, 429 Mass. 745, 747, 748-479 (1999), and cases cited; Commonwealth v. Passley, 428 Mass. 832, 835 (1999).

In determining whether the use of the statements regarding the defendant's invocation of his constitutional right created a substantial likelihood of a miscarriage of justice, one significant factor to consider is the strength of the evidence against the defendant. The defendant was alone with the victim at the critical time. On the way to the hospital he suggested that internal injuries were the cause of the victim's condition. He threatened suicide if he was blamed for the death, at a time when 'no one was being blamed.

DNA tests proved that his sperm were found in the victim's mouth, for which there was no exculpatory credible explanation. In November, 1992, the defendant denied having oral sex with the victim's mother [Note 21], but changed his story when he spoke to the Seattle detective and FBI agent at the time of his arrest. When he testified at trial, the defendant claimed that the law enforcement officials in Seattle misinterpreted the time he said he had oral sex with the mother and claimed that it occurred late in the evening of the day before the victim's death. This change could be seen as an attempt to make his story more believable. At trial defense counsel advanced a new theory as to how the sperm got into the victim's mouth: through the CPR the mother performed on the baby the morning of her death. This explanation was plainly at odds with the testimony of the fire fighter who tried to revive the victim within minutes of her being discovered injured in the apartment, who testified that the victim's jaw was "clenched shut" and her "teeth were so tight that you couldn't do anything to the teeth."

The defendant also made changes in his version of events that appear as an attempt to adapt his testimony to the Commonwealth's evidence. See Commonwealth v. Sherick, 401 Mass. 302, 304 (1987). Finally, there was evidence of a

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consciousness of guilt because the defendant moved to Seattle within a few weeks of his learning that sperm were found in the victim's mouth and his giving blood for DNA analysis. See Commonwealth v. Carrion, 407 Mass. 263, 277 (1990) ("Flight is perhaps the classic evidence of consciousness of guilt"), and cases cited.

In this context we conclude that the testimony of the Seattle detective and the prosecutor's closing pales into insignificance, and, therefore, no substantial likelihood of a miscarriage of justice exists [Note 22].

5. Relief under G. L. c. 278, s. 33E. We have reviewed the entire record pursuant to G. L. c. 278, s. 33E, and conclude that a reduction in the murder verdict or a new trial is not required.

Judgments affirmed.