90 N.E.3d 722
Mass.2018Background
- Defendant (State trooper) met adult victim M.M. on a dating website; exchanged explicit messages and met for coffee, then went to her apartment.
- Inside M.M.’s apartment, defendant exposed his penis, despite M.M. saying “No,” “No means no,” and trying to pull away; defendant grabbed her wrist and forced her to touch him; he then apologized and left.
- M.M. quickly texted a friend (J.D.), called police that night and again the next morning, and preserved messages and other evidence; defendant was indicted on indecent assault and battery (over 14), indecent exposure, and assault and battery.
- At trial defendant requested jury instructions on mistake of fact (honest and reasonable belief in consent / belief that exposure would not offend); the judge denied those instructions and admitted J.D.’s first‑complaint testimony and some investigative testimony by officers.
- Defendant also challenged the judge’s follow‑up voir dire of two venire members and the judge’s refusal to excuse them for cause; defendant used peremptory challenges and preserved challenge‑for‑cause rulings for appeal.
- The SJC affirmed convictions, holding no error in denying mistake‑of‑fact instructions, admitting testimony, or in the judge’s voir dire and for‑cause rulings.
Issues
| Issue | Commonwealth's Argument | Kennedy's Argument | Held |
|---|---|---|---|
| Whether defendant was entitled to a mistake‑of‑fact instruction for indecent assault and battery (adult victim) | Mistake of fact is not available because mens rea is intent to commit indecent/unprivileged touching; consent is an element but Commonwealth need not prove defendant intended lack of consent | Defendant argued he honestly and reasonably believed M.M. consented, so mistake of fact negates intent element and merits an instruction | Denied; Lopez controls — mistake as to consent generally not available where culpability is establishing intent to commit the touching, and facts showed clear, repeated nonconsent so instruction not warranted |
| Whether defendant was entitled to a mistake‑of‑fact instruction for indecent exposure (belief victim wouldn’t be offended) | Mens rea is intentional exposure; defendant’s belief that victim would not be offended does not negate required mental state | Defendant argued reasonable belief that exposure would not offend M.M. negates culpability for indecent exposure and warrants instruction | Denied; intent to expose suffices for the offense and M.M.’s immediate protests negated any reasonable belief she was not offended |
| Whether first‑complaint testimony (friend J.D.) and investigative testimony were improperly admitted | First‑complaint testimony and officers’ testimony were admissible for limited purposes (to explain how case arose and how exhibits were obtained) and did not impermissibly bolster credibility | Argued J.D.’s and officers’ testimony improperly corroborated and ‘piled on’ first complaint, unfairly enhancing victim’s credibility | Admitted; trial judge limited scope of J.D.’s testimony and officers’ testimony was independently admissible to explain investigative steps, not to prove truth of allegations |
| Whether judge abused discretion in follow‑up voir dire and refusing to excuse two jurors for cause | Judge may and should ask follow‑up questions to probe impartiality; answers showed jurors could be fair | Argued judge’s follow‑up was inadequate and designed to elicit favorable answers; jurors had shown bias that required dismissal for cause | No abuse of discretion; jurors affirmed ability to be impartial after judge’s clarifying questions and were properly retained or peremptorily challenged |
Key Cases Cited
- Commonwealth v. Lopez, 433 Mass. 722 (holding mistake of fact as to consent generally unavailable in rape prosecutions because statute requires intent to commit intercourse by force rather than intent to act without consent)
- Commonwealth v. Blache, 450 Mass. 583 (where complainant incapable of consenting due to intoxication, Commonwealth must prove defendant knew or reasonably should have known incapacity)
- Commonwealth v. Marzilli, 457 Mass. 64 (defining elements of indecent assault and battery on person over fourteen)
- Commonwealth v. St. Louis, 473 Mass. 350 (defining indecent exposure and its mens rea as intentional exposure)
- Commonwealth v. King, 445 Mass. 217 (clarifying limits and purpose of first‑complaint testimony)
- Commonwealth v. McCoy, 456 Mass. 838 (first‑complaint doctrine does not bar otherwise independently admissible investigative testimony)
- Commonwealth v. Aviles, 461 Mass. 60 (standard of review for admission of first‑complaint evidence is abuse of discretion)