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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 thirdparty 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.