Commonwealth v. Olivier

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13-P-1216 Appeals Court

COMMONWEALTH vs. HERVE OLIVIER, JR.

No. 13-P-1216.

Middlesex. October 7, 2015. - August 10, 2016.

Present: Katzmann, Rubin, & Wolohojian, JJ.

Rape. Practice, Criminal, Indictment, Lesser included offense,
Sentence, Subpoena, Argument by prosecutor, Jury and
jurors, Voir dire. Subpoena. Evidence, Relevancy and
materiality, Privileged record, Expert opinion. Search and
Seizure, Warrant, Affidavit. Witness, Expert.

Indictments found and returned in the Superior Court
Department on December 15, 2011.

A pretrial motion for presumptively privileged records was
considered by Thomas P. Billings, J., and a renewed motion was
heard by Kathe M. Tuttman, J; a pretrial motion for a hearing on
the adequacy of the affidavit supporting a search warrant was
heard by Thomas P. Billings, J.; and the cases were tried before
Bruce R. Henry, J.

Stanley D. Helinski for the defendant.
Kate Cimini, Assistant District Attorney, for the
Commonwealth.

RUBIN, J. This case presents a question of first

impression about the adequacy of the subsequent offense portion
 2

of an indictment where, on the main indictment, a defendant is

convicted not of the charged offense, but of a lesser included

offense that carries a subsequent offense enhancement.

The defendant was indicted on December 15, 2011, on ten

counts. Count 1 charged rape of a child by force under G. L.

c. 265, § 22A. A second part of that count, captioned "Forcible

Rape of a Child -- Subsequent Offense," charged that at the time

of the offense charged in the first count the defendant "was

previously convicted of Indecent Assault and Battery on a Child

Over Fourteen, a violation of Massachusetts General Laws Chapter

265 Section 13[H] in the Framingham Juvenile Court Docket No.

DL05FO606 on November 28, 2007."1 See G. L. c. 265, § 22C.2

1
The subsequent offense portion of count 1 of the
indictment originally contained a typographical error, listing
the statutory section for the previous conviction of indecent
assault and battery on a person over fourteen as "[G. L.
c.] 265, [§] 13B." This error was corrected prior to the trial
on that part of count 1. The defendant does not argue on appeal
that the judge erred by allowing the Commonwealth to amend the
indictment.
2
The original subsequent offense portion of count 1 also
erroneously listed the statutory section for that offense as
"C.265, § 23C." The statutory section providing for a
subsequent offense enhancement for rape of a child by force is
G. L. c. 265, § 22C. The statutory section providing for a
subsequent offense enhancement for statutory rape is G. L.
c. 265, § 23B. The Commonwealth was permitted to amend the
section number to "23B" immediately before the trial on the
subsequent offense portion of the indictment. The defendant
does not argue on appeal that the judge erred by allowing this
amendment.
 3

After a jury trial, the defendant was convicted on count 1

not of rape of a child by force, but of the lesser included

offense of rape of a child (i.e., statutory rape) under G. L.

c. 265, § 23. Some eleven days later, a new jury was

empanelled, and the defendant was tried on the subsequent

offense penalty enhancement for the latter crime under G. L.

c. 265, § 23B. See G. L. c. 278, § 11A; Commonwealth v.

Pelletier, 449 Mass. 392, 396 (2007), quoting from Commonwealth

v. Miranda, 441 Mass. 783, 788 (2004) (explaining that § 11A

"requires a defendant to be tried in a two-step, bifurcated

procedure: 'first, on the underlying substantive crime and,

then, in a separate proceeding, on that component of the charge

referring to the crime as a second or subsequent offense'").

See also Commonwealth v. Fernandes, 430 Mass. 517, 520-521

(1999), cert. denied sub nom. Martinez v. Massachusetts, 530

U.S. 1281 (2000) ("[T]he counts for the current offense and for

the repeat offense are viewed as parts of one indictment and

charge only one crime with a sentence enhancement provision").

He was convicted. He received a mandatory minimum sentence of

fifteen years in State prison under the penalty enhancement.3

See G. L. c. 265, § 23B. The defendant now appeals.

3
The defendant was also sentenced to (1) community parole
supervision for life pursuant to G. L. c. 265, § 45, on count 1;
(2) a consecutive term of five years of probation on count 2, a
 4

1. The subsequent offense enhancement. The defendant

first argues that since he was acquitted of rape of a child by

force on count 1, the subsequent offense portion of the

indictment was in essence a nullity. The indictment read

"Forcible Rape of a Child -- Subsequent Offense." Since the

defendant was acquitted of forcible rape of a child under the

first count, the defendant argues, if the Commonwealth desired

to try him for the subsequent offense enhancement applicable to

the lesser offense of which he was convicted, it was required to

amend the indictment to say so. He argues that having failed to

do so, the Commonwealth did not put him on notice that he might

be tried for the subsequent offense enhancement were he

convicted of a lesser included offense.4

We disagree. It is well established that an indictment for

a greater offense puts a defendant on notice that he may be

convicted of a lesser included offense that is not named in the

second count of statutory rape for which the Commonwealth did
not seek a subsequent offender enhancement; and (3) 337 days in
the house of correction, deemed served, on counts 6 and 7, two
drug offenses to which he pleaded guilty.
4
Because the relevant question is whether the defendant was
put on notice at the time of the original indictment of what
might follow from conviction of a lesser included offense, the
judge's amendment immediately before commencement of the
subsequent offense portion of the trial of the statutory
citation, but not the language of the indictment, is irrelevant
to our opinion, even if such a change were otherwise sufficient
to cure the alleged notice problem, something we need not and do
not decide.
 5

indictment. See Commonwealth v. Keane, 41 Mass. App. Ct. 656,

661 (1996) ("[A]n indictment for aggravated rape clearly gives

notice of the lesser included crime of rape"). Likewise, the

second or subsequent offense portion of an indictment identifies

the previous conviction5 that the Commonwealth will seek to prove

at trial. In such a case, we think that the subsequent offense

indictment puts a defendant on notice that, should he be

convicted of only a lesser included offense for which the prior

conviction named in the subsequent offense indictment also

subjects him to a subsequent offense enhancement, the

Commonwealth may proceed to trial on the subsequent offense

enhancement applicable to the lesser included offense

conviction.

First, we think that this is the way that any reasonable

attorney would understand the indictment, though we recognize

that how any individual attorney would understand the language

of the indictment is an empirical question. Second, we think

that any alternative would be impractical, since the second,

subsequent offense trial is ordinarily conducted immediately

5
In this case, the previous "conviction" was in fact an
adjudication of delinquency, since the defendant was fourteen
years old when he committed the prior offense of indecent
assault and battery on a person fourteen or older. As the
subsequent offense statute for statutory rape provides the same
sentencing enhancement for both prior convictions and prior
adjudications of delinquency, the distinction is immaterial.
See G. L. c. 265, § 23B.
 6

after the conviction on the underlying offense. And finally,

such a reading of the indictment does not prejudice the

defendant. No defendant can be certain of a conviction on a

lesser included offense rather than the charged offense.

Therefore, if the prior conviction is to be contested, counsel

will have to prepare for the subsequent offense trial in advance

of trial on the charged offense. In circumstances such as

these, where the specific prior offense to be proved is

identified in the indictment and it subjects the defendant to an

enhancement with respect to the lesser included offense of

conviction, nothing different will be at issue in the subsequent

offense trial than would have been at issue had the defendant

been convicted of the charged, greater offense. There thus can

be no prejudice to the defendant.

We note that nothing that we say prevents the Commonwealth

from determining not to proceed on a subsequent offense

enhancement in the event of conviction of only a lesser included

offense. That discretionary determination remains with the

executive branch. See, e.g., District Attorney for the Suffolk

Dist. v. Watson, 381 Mass. 648, 668 (1980) (prosecutor has

uncurbed discretion to nol pros portions of indictment charging

murder in first degree). We also note that our decision applies

only to indictments such as the one at issue here, which

identifies the prior conviction to be proved. We express no
 7

opinion on indictments that may be phrased or structured

differently.

2. The remaining claims of error. The defendant also

claims that the Superior Court judges erred in five other

respects: (1) by denying the defendant's motions seeking the

victim's records; (2) by denying the defendant's motion for a

hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978); (3)

by ruling that the defendant's deoxyribonucleic acid (DNA)

expert could not criticize the thoroughness of the

Commonwealth's investigation; (4) by failing to sustain the

defendant's objection to the prosecutor's misstatements in

closing; and (5) by refusing to ask a series of voir dire

questions proposed by the defendant. We disagree with the

defendant in all respects. Before explaining our reasoning,

however, it is necessary to set forth additional factual

background.

a. Background. As stated previously, the defendant was

indicted on ten counts: two counts of rape of a child by force

as a subsequent offense, G. L. c. 265, § 22A; two counts of

aggravated rape of a child by force (aggravated by kidnapping)

as a subsequent offense, G. L. c. 265, § 22B; one count of

indecent assault and battery on a person over fourteen, G. L. c.

265, § 13H; one count of distribution of marijuana, G. L. c.

94C, § 32C(a); one count of possession with intent to distribute
 8

marijuana, G. L. c. 94C, § 32C(a); one count of kidnapping, G.

L. c. 265, § 26; one count of intimidation of a witness, G. L.

c. 268, § 13B; and one count of threat to commit a crime, G. L.

c. 275, §§ 2 & 4. The defendant pleaded guilty to the drug

offenses before trial. He was found guilty of the lesser

included offense of statutory rape on the four indictments that

charged rape of a child by force and aggravated rape. The judge

then vacated the jury verdicts on the aggravated rape charges

and dismissed the indictments as duplicative. The defendant was

acquitted of indecent assault and battery, kidnapping,

intimidation of a witness, and threat to commit a crime. As

discussed above, in the second phase of the trial, a new jury

found that the conviction of rape of a child on count 1 was a

subsequent offense.

We recite the facts a reasonable jury could have found,

taking the evidence in the light most favorable to the

Commonwealth except where the jury verdicts rejected the

Commonwealth's theory of the case. We reserve additional facts

for later discussion of specific issues.

The defendant and the victim started communicating in

October, 2011, when the victim had returned to her grandparents'

house6 in New Hampshire after running away to stay with friends

6
The victim's grandparents were her legal guardians.
 9

in Marlborough for three days. The victim used two different

applications installed on her iPod Touch to communicate with the

defendant both by voice and by text message. At some point

during the next few weeks, the victim told the defendant that

she wanted to run away again.

On November 1, 2011, they made a plan for the defendant and

a friend of his, who had a car, to pick up the victim at her

grandparents' house. When the defendant sent a text message

saying that he was nearby, the victim told her grandmother that

the screen in her window was broken. While her grandmother was

looking at the screen, the victim took her purse, a bag she had

packed, and thirty-seven dollars from her grandmother's purse,

and left the house. Before she got into the car with the

defendant, he said that she should tell his friend she was

nineteen. However, at the time she was only fifteen. The

victim's grandmother saw her getting into the car, yelled at her

to stop, and then got in her car and gave chase until she could

no longer see the vehicle she was pursuing.7

The defendant's friend drove to the defendant's house in

Maynard, where he dropped off the defendant and the victim. On

the night of November 2 and the morning of November 3, the

7
The victim testified that she tried to get out of the car,
but the defendant threatened to kill her if she did. The jury's
verdict on the threat to commit a crime charge indicates that
they did not find beyond a reasonable doubt that this occurred.
 10

defendant and the victim had sex.8 The victim testified that the

first time they were on the defendant's bed and the second time

they were on the defendant's floor. The victim did not know

whether the defendant used a condom the first time, but

testified that the second time he did use a condom, which he

took from the top drawer of his dresser.

Later on November 3, the victim sent a text message to a

friend of hers asking him to pick her up. When he arrived, she

left without her iPod or her purse because the defendant had

taken them. They drove to a location where the victim's

grandparents could pick her up.

The grandparents then brought the victim to their town

police station, where they had reported her missing. A

detective interviewed the victim. During that initial

interview, she denied that there was a sexual relationship

between her and the defendant. After she gave her statement,

the detective told her that he was not sure she was being

truthful. On November 7, the victim's grandmother called the

police station, and told the detective that there had been

sexual contact between the victim and the defendant. On the

basis of this new information, the Maynard police sought,

8
The victim testified that both instances were not
consensual and were forcible. The jury's verdicts indicate that
they did not find this to be the case beyond a reasonable doubt.
 11

received, and executed a search warrant for the defendant's

house on November 8. The police seized, among other things, the

victim's purse and the sheets and blankets from the defendant's

bed.

b. The defendant's rule 17(a)(2) motions. The defendant

argues that the motion judges should have allowed his motions

under Mass.R.Crim.P. 17(a)(2), 378 Mass. 885 (1979), for third-

party subpoenas of the victim's medical records, § 504(b)

records,9 and school records under the protocol set forth in

Commonwealth v. Dwyer, 448 Mass. 122 (2006) (Dwyer).

Prior to trial, the defendant acquired a letter that was

addressed to the victim's primary care provider from a doctor

who had interviewed the victim after she reported the alleged

rape.10 This letter contains three facts relevant to the issues

raised on appeal. First, the letter indicates that the victim

saw a counsellor because of posttraumatic stress disorder (PTSD)

and that the victim's grandmother stated that this condition

resulted from the victim's stepfather locking her out of the

house one night. Second, the letter indicates that the victim

9
See note 11, infra.
10
The letter itself makes clear that the recipient, Amanda
Woodfriend, is the victim's primary care provider, as it states,
"Apparently [the victim] will now be seeing you for primary
care." At the motion hearing, counsel for the defendant
incorrectly suggested that Woodfriend was the victim's
counsellor.
 12

told the interviewing doctor that she was planning on informing

her counsellor about the alleged rape during an appointment the

following week. Third, the letter indicates that the victim has

a 504 plan11 at her high school because of her PTSD.

On June 2, 2012, the defendant filed a motion requesting

"[a]ll treatment records and interviews" from the interviewing

doctor and the victim's primary care provider, records relating

to legal guardianship and legal custody proceedings involving

the victim, and records relating to the victim's 504 plan. The

first motion judge denied this motion after a nonevidentiary

hearing on June 4, 2012, essentially on the ground of

relevance.12 On May 3, 2012, the defendant had filed a motion

requesting "all records" of the victim from her high school.13

11
Although the letter does not explain this terminology, a
"504 plan" is a plan "to accommodate [a child's] disability and
enable [her] to attend public school." CTL v. Ashland Sch.
Dist., 743 F.3d 524, 525 (7th Cir. 2014). Public schools are
required by § 504 of the Rehabilitation Act, 29 U.S.C. § 794
(2012), to provide such plans to ensure that individuals with
disabilities are not subjected to discrimination on account of
their disabilities. See C.L. v. Scarsdale Union Free Sch.
Dist., 744 F.3d 826, 831, 840-841 (2d Cir. 2014).
12
On July 19, 2012, the defendant renewed the portion of
the June 2 motion that requested records from the interview and
medical evaluation performed after the victim had reported the
alleged rape. The second motion judge allowed this motion the
same day. The court received the records a little over a month
later.
13
The docket does not reflect the filing of this motion on
May 3, 2012. However, both the defendant's record appendix and
 13

After the first motion judge denied this request without

prejudice, the defendant renewed the motion on July 19, 2012.

The second motion judge denied the renewed motion "without

prejudice to renew upon a further showing of evidentiary

relevance pursuant to Mass.R.Crim.P. 17." The defendant did not

renew the motion a second time.

The defendant appeals from the denial of his motions for

third-party subpoenas of the medical records, the records

relating to the victim's 504 plan, and the victim's school

records. Evaluating the defendant's arguments requires applying

the Dwyer protocol.

Dwyer, 448 Mass. at 147-150 (Appendix), established a

multi-step protocol that a defendant must follow to gain access

to presumptively privileged records held by a nonparty via a

rule 17(a)(2) motion. The Dwyer protocol replaced the

restrictive Bishop-Fuller protocol that had previously governed

such motions. See Dwyer, supra at 144 ("[A]mong the most

significant difficulties [with the Bishop-Fuller protocol] is

the inability of defendants to meet the stringent Fuller

standard, even though statutorily privileged records may contain

exculpatory evidence"). See also Commonwealth v. Bishop, 416

the Commonwealth's supplemental record appendix include a copy
of the motion dated May 3, 2012, bearing a handwritten, signed
denial by the first motion judge.
 14

Mass. 169 (1993); Commonwealth v. Fuller, 423 Mass. 216 (1996).

The Dwyer protocol relaxes Fuller's more stringent requirements.

See Dwyer, supra at 144 ("The amended protocol is designed to

give the fullest possible effect to legislatively enacted

privileges consistent with a defendant's right to a fair trial

that is not irreparably prejudiced by a court-imposed

requirement all but impossible to satisfy").

The first step of the Dwyer protocol -- which applies to

requests for both privileged and nonprivileged records --

requires the defendant to file and serve a motion pursuant to

Mass.R.Crim.P. 17(a)(2).14 Dwyer, 448 Mass. at 147 (Appendix).

Under Commonwealth v. Lampron, 441 Mass. 265 (2004) (Lampron),

"[T]he party moving to subpoena documents to be produced before

trial must establish good cause, satisfied by a showing '(1)

that the documents are evidentiary and relevant; (2) that they

are not otherwise procurable reasonably in advance of trial by

exercise of due diligence; (3) that the party cannot properly

prepare for trial without such production and inspection in

14
The Commonwealth is required to forward copies of the
motion and the attached affidavit to the record holder and the
victim, and to inform both the record holder and the victim that
they may be heard at the Lampron hearing "on whether the records
sought are relevant or statutorily privileged." Dwyer, 448
Mass. at 148 (Appendix). The defendant has not argued that the
Commonwealth failed to satisfy this requirement of the Dwyer
protocol, so we assume that it was followed in this case, and
that the record holder and the victim chose not to appear at the
Lampron hearing.
 15

advance of trial and that the failure to obtain such inspection

may tend unreasonably to delay the trial; and (4) that the

application is made in good faith and is not intended as a

general "fishing expedition."'" Id. at 269, quoting from United

States v. Nixon, 418 U.S. 683, 669-700 (1974). The judge is to

determine whether the requested records are privileged only

after first ruling on whether the defendant has satisfied the

four prongs of the Lampron standard. See Dwyer, supra at 148

(Appendix).

i. The medical records. As to the medical records, the

first motion judge correctly determined that the defendant

failed to meet the first prong of this test for good cause.

Under this prong "the defendant must 'make a factual showing

that the documents sought are relevant and have evidentiary

value'[;] . . . '[p]otential relevance and conclusory statements

regarding relevance are insufficient . . . .'" Dwyer, supra at

142, quoting from Lampron, supra at 269. The standard of

relevance applied to rule 17(a)(2) motions is the same standard

applied to evidence at trial: "the defendant must show that the

documentary evidence sought has a 'rational tendency to prove

[or disprove] an issue in the case.'" Lampron, supra at 269-

270, quoting from Commonwealth v. Fayerweather, 406 Mass. 78, 83

(1989). This standard -- rather than the broad discovery

standard -- applies because "rule 17(a)(2) is not a discovery
 16

tool." Dwyer, supra at 142 (emphasis omitted). Thus,

allegations of relevance "couched in hypothetical language" are

insufficient. Commonwealth v. Sealy, 467 Mass. 617, 628 (2014)

(Sealy). That said, in evaluating arguments for relevance under

the first prong of Dwyer, the court must be sensitive to the

fact that the defendant necessarily lacks access to the content

of the requested records. Requiring too much specificity from

the defendant risks resurrecting the restrictive Bishop-Fuller

protocol in another guise. However, requiring too little

specificity risks making the privileged medical records of crime

victims an open book.

The defendant makes three arguments for the relevance of

the victim's medical records. First, the defendant argues that

records of the victim's PTSD diagnosis might establish that she

suffers from dissociation, which could have caused her to

misperceive the events of the alleged rapes. Second, the

defendant argues that because the PTSD allegedly resulted from

the victim's stepfather once punishing her by locking her out of

the house overnight, records of the victim's PTSD diagnosis

might establish that the victim has a particularly strong motive

to lie to avoid punishment by her current guardians. Third, the

defendant argues that records from the victim's appointment with

her therapist after the alleged rapes might contain either an

inconsistent account or meaningful silence.
 17

As to the first claimed justification, the defendant has

not provided any evidence that PTSD can cause a person to

misperceive events that bear no relationship to the traumatic

event that caused the PTSD. The defendant's expert does not

make such a statement and the source cited by the defendant's

expert does not support it. See Feeny & Danielson, PTSD,

Dissociation, and Treatment, in Advances in the Treatment of

Posttraumatic Stress Disorder: Cognitive-Behavioral

Perspectives 223, 225-227 (Steven Taylor ed., 2004) (defining

"dissociation").

As to the second, the defendant has provided no evidence

that people who suffer from PTSD have a stronger motive to lie

to avoid trauma-related events such as punishment than do other

people who do not suffer from PTSD. The affidavit of the

defendant's expert does not support this proposition.

Finally, as to the third asserted basis for the relevance

of the requested material, even assuming that the primary care

provider whose records the defendant sought would for some

reason have information in her records about statements the

victim made to her counsellor, there is no evidence the victim

ever even spoke to her counsellor about the alleged rape. There

is only a note in the letter to the victim's primary care

provider stating that the doctor who wrote the letter urged the

victim to speak to her counsellor about the incident. This
 18

final basis for the request thus is "'entirely speculative,'

[and the defendant has] failed to 'provide a factual basis for

demonstrating that the privileged materials . . . were relevant

and material to any issue in the case.'" Sealy, 467 Mass. at

628, quoting from Commonwealth v. Bourgeois, 68 Mass. App. Ct.

433, 437 (2007).

ii. The 504(b) records. The defendant's argument for the

relevance of the 504 plan records held by the victim's school is

also, as the first motion judge concluded, unavailing. The

defendant claims that these records would contain evidence of

the victim's "mental state at the time of the incident." The

defendant's motion, however, requested "[r]ecords relating to

the alleged victim's '504 Plan' including basis of enrollment."

The defendant offered no reason to believe that records relating

to the victim's initial enrollment in the 504 plan would be

relevant to her mental state at the time of the alleged rape.

The defendant also offered no evidence that the school's records

contain any information other than the bare fact that the victim

suffers from PTSD. In the absence of a proffer of any basis for

believing the records contained the information described, the

defendant's claim of relevance with respect to the 504 plan

records is speculative as well.

Because we affirm the denial of this Lampron motion on

relevance grounds, the defendant's argument that the victim
 19

waived her privilege over her medical records is moot. As

stated above, Lampron requires that the requested documents be

relevant whether or not they are privileged. 441 Mass. at 269.

iii. The school records. Lastly, as to the requests for

all the victim's high school records, we also agree with both

motion judges that the defendant failed to make a showing of

relevance sufficient to warrant the issuance of a third-party

subpoena.

The defendant argues that the requested school records were

relevant because the victim "must have provided some explanation

to the school for her absence" while she was with the defendant.

As in Sealy, this claim of relevance is utterly speculative, and

is therefore insufficient. See Sealy, 467 Mass. at 628. And,

as above, the defendant's argument that the victim waived the

privilege as to her school records is moot.

c. The defendant's Franks motion. Next, the defendant

argues that the first motion judge should have allowed his

motion for a hearing pursuant to Franks v. Delaware, 438 U.S.

154 (1978). A search of the defendant's home was conducted

pursuant to a search warrant after the victim told a police

officer that while she was at the defendant's house he had raped

her on two separate occasions, that the defendant had used a

condom on one of those two occasions, and that the defendant had

stolen several of her possessions. The defendant argues that
 20

the magistrate who issued the warrant was not provided with

additional information -- specifically, that the victim had a

history of running away from the house where she lived with her

grandparents, that she had tricked her grandmother in order to

get out of the house and into the car with the defendant, that

she had stolen money from her grandmother before leaving, that

during her initial interview with the police she denied any

sexual relationship between her and the defendant, that the

officer who conducted the initial interview said that he did not

think she was being truthful, and that she first made the

allegation of rape to the police four days after that initial

interview. He argues that he has made a "substantial

preliminary showing" that the affidavit accompanying the

application for the search warrant "contained one or more

[omissions of fact] made intentionally or with reckless

disregard for the truth" that were material to the magistrate's

finding of probable cause, see Commonwealth v. Ramos, 72 Mass.

App. Ct. 773, 777 (2008), and that therefore the motion judge

should have held a hearing under Franks.

We disagree. Because this additional information would not

have eliminated probable cause, there was no need for such a

hearing. Cf. Commonwealth v. Amral, 407 Mass. 511, 519-520

(1990), quoting from Franks, 438 U.S. at 155-156 (where the

affidavit supporting the warrant application allegedly contained
 21

false statements, suppression would be the remedy only if "with

the affidavit's false material set to one side, the affidavit's

remaining content is insufficient to establish probable cause").

d. The defendant's DNA expert. The defendant argues next

that his DNA expert should have been permitted to criticize the

thoroughness of the investigation done in this case by

testifying that bed sheets taken from the defendant's house

during the search should have been tested for DNA.

The expert, however, held expertise in observing DNA

testing in laboratories, ensuring that the testing was

exhaustive, and advising defense attorneys as to whether the

testing was performed in accordance with the laboratory's

procedures and protocols. During both pretrial proceedings and

at trial, defense counsel acknowledged that the witness's

expertise was so limited, stating that he is "not a

criminologist," and agreeing with the judge that the expert was

not involved in the collection of DNA evidence, but instead was

an expert in analyzing samples that somebody else had collected.

Expert witnesses are not permitted to testify to matters

outside their area of competence. Thus, the trial judge did not

abuse his discretion in preventing the expert from criticizing

the thoroughness of the Commonwealth's investigation. See

Commonwealth v. Frangipane, 433 Mass. 527, 533 (2001).
 22

e. The prosecutor's closing statement. The defendant

argues that the prosecutor misstated the evidence during her

closing statement. During the closing, the prosecutor described

the police search of the defendant's bedroom, saying that "in

the top bureau drawer right where [the victim] said the

defendant had reached to get a condom they found a big bag of

condoms and the ripped opened wrapper." The defendant argues

that the use of the definite article -- "the ripped opened

wrapper" -- implied that there was evidence that the condom

wrapper found had contained the condom used with the victim,

when, in fact, the prosecutor's statement required drawing an

inference from the evidence. The defendant objected below. The

trial judge agreed to instruct the jury that final arguments

"are just that, arguments," and that the jurors' recollection of

the facts controls, but said that he did not hear any improper

argument.

We see no error. There was evidence that the defendant had

used a condom with the victim and that he had taken the condom

out of a bureau drawer where police found a condom wrapper

during the search of the defendant's room five days later. The

prosecutor's closing is best read permissibly to marshal the

evidence and to draw reasonable inferences therefrom in an

attempt to make a case to the jury. Commonwealth v. Hart, 428
 23

Mass. 614, 616 (1999) (prosecutor's closing argument may contain

"inference[s] from the evidence").

f. The defendant's proposed voir dire questions. Finally,

the defendant proposed a series of voir dire questions designed,

he argues, to assess prospective jurors' racial prejudice. The

defendant is correct that in cases involving interracial rape,

"individual questioning with respect to racial prejudice, on

request, is mandatory." See Commonwealth v. Lopes, 440 Mass.

731, 737 (2004). The precise questions to be asked at voir

dire, however, are within the sound discretion of the trial

judge. See Commonwealth v. Pope, 392 Mass. 493, 505 (1984).

Here, the judge asked each prospective juror a question in

roughly the form: "The complaining witness in this case is

white, the defendant is black. Would those facts affect you in

any way in listening to this case?" He also told defense

counsel before the voir dire began that "if you have some

feeling about a particular juror and you'd like me to ask some

further questions of a particular juror, I will at least

entertain that and probably do that under the circumstances."

We think that this was an appropriate and adequate mechanism for

addressing the issue raised by the defendant, and we see no

abuse of discretion in the judge's refusal to routinely ask
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every prospective juror the additional questions propounded by

the defendant.

Judgments affirmed.