17 Mass. App. Ct. 252 | Mass. App. Ct. | 1983
The defendant was the subject of two indictments for rape and separate indictments for burglary, assault and battery, and threatening to commit a crime. All of these offenses were alleged to have occurred on October 10, 1980, in Lowell. The defendant was also indicted for intimidation of a witness, malicious destruction of personal property, unauthorized use of a motor vehicle, and assault and battery. These four offenses were alleged to have taken place on January 8, 1981, in Lowell. All nine indictments involved the same victim. The indictments were tried together, over the defendant’s objection, and the defendant was convicted of all the charges, except those that charged malicious destruc
1. The denial of the motion to sever the indictments. Prior to trial the defendant moved to sever the trial of the January 8, 1981, indictments from the trial of the October 10, 1980, offenses. The motion was not supported by an affidavit. See Mass.R.Crim.P. 9(d)(2), 378 Mass. 860 (1979). The judge denied the motion, stating that “even if an affidavit had been filed, the court, exercising its discretion, would deny the motion.” There was no error.
A trial judge is required to join charges arising out of “related offenses” for trial “unless he determines that joinder is not in the best interests of justice.” Mass.R.Crim.P. 9(a)(3), 378 Mass. 859 (1979). At the hearing on the motion the judge learned from representations by the Commonwealth and from the indictments that evidence would be introduced that (1) on October 10, 1980, the defendant forcibly entered the victim’s apartment, raped her twice and threatened to kill her if she reported the incidents to anyone, and (2) on January 8, 1981, after the victim had reported the October 10, 1980, incidents to the police and after the defendant had been charged, the defendant jumped into the victim’s automobile, assaulted her, drove her car away, and left the vehicle in a damaged condition. The trial judge, based on the particular facts before him, see Commonwealth v. Ellis, 12 Mass. App. Ct. 612, 620 (1981), reasonably could infer that the January 8, 1981, offenses were a direct result of and motivated by the October 10, 1980, incident, especially the defendant’s threat on that date that if the victim should report the incidents to anyone, he would kill her. Therefore, all the offenses with which the defendant was charged were related as they arose “out of a course of criminal conduct or series of criminal episodes connected together. ...” Mass.R.Crim.P. 9(a)(1), 378 Mass. 859 (1979).
2. Denial of effective assistance of counsel. The defendant claims that he was denied the effective assistance of counsel. We have examined the defendant’s contentions in light of the record and conclude that the conduct of trial counsel did not fall “measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Judgments affirmed.
At the close of the Commonwealth’s case the judge allowed the defendant’s motion for a required finding of not guilty as to those indictments.
The defendant does not claim, on this appeal, that the admission in evidence of the October 10, 1980, offenses prejudiced him in regard to the January 8, 1981, crimes.