18 Mass. App. Ct. 927 | Mass. App. Ct. | 1984
The defendant appeals from his convictions on two counts of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B, and one count of statutory rape, G. L. c. 265, § 23. The victim was a seven year old girl left in the defendant’s care by her working mother. The statutory rape conviction was based on an indictment charging forcible rape of a child under sixteen, G. L. c. 265, § 22A. At the close of the Commonwealth’s case the judge allowed the Commonwealth’s motion to dismiss so much of the indictment as alleged force or the threat thereof.
1. The defendant objected at trial to the Commonwealth’s introduction of fresh complaint testimony prior to the testimony of the victim. On appeal, the defendant argues that the fresh complaint testimony should have been excluded because it was more specific and detailed than the victim’s own account, particularly on the element of penetration. No claim is or could be
2. The prosecutor’s closing argument, looked at in its entirety, although punctuated by a few “misdirected barrages” of the type discouraged in Commonwealth v. Grammo, 8 Mass. App. Ct. 447, 457-458 (1979), fell (taking curative instructions into account) within the bounds marked by such cases as Commonwealth v. MacDonald (No. 1), 368 Mass. 395, 400-402 (1975), Commonwealth v. Borodine, 371 Mass. 1, 9-12 (1976), cert. denied, 429 U.S. 1049 (1977), and Commonwealth v. Burnett, 371 Mass. 13, 18-19 (1976), and lacked the elements of unfairness or persistence exhibited in such cases as Commonwealth v. Burke, 373 Mass. 569, 574-575 (1977), Commonwealth v. Shelley, 374 Mass. 466, 469-471 (1978), Commonwealth v. Smith, 387 Mass. 900 (1983), and Commonwealth v. Hogan, 12 Mass. App. Ct. 646, 647-654 (1981). The prosecutor’s reference to the “foreign accent” of a doctor who testified for the defendant, if intended as a racial slur (the judge expressly found otherwise), did not approach, in relevance or emphasis, the appeals to racial or religious bigotry which were held to be prejudicial error in Commonwealth v. Graziano, 368 Mass. 325, 331-333 (1975), and Commonwealth v. Mahdi, 388 Mass. 679, 691-693 (1983). The prosecutor’s argument that the defendant might have been cured of gonorrhea between May 8 (the day of the mother’s accusation) and May" 18 (the day the defendant was tested negatively for gonorrhea) was, in general, a proper line of argumentation, even if the reason suggested for the defendant’s having had himself tested in Palmer, rather than in Springfield, may have carried the process of inference-drawing to the verge of speculation. The reference to the superiority of Springfield hospitals, while not grounded in the evidence, was at least colorably within the sphere of common knowledge, compare Commonwealth v. Fitzgerald, 376 Mass. 402, 420 (1978), but was cured in any event by the judge’s pointed instruction that counsel’s arguments did not constitute evidence and by his admonition against speculation.
3. The defendant argues that the judge improperly foreclosed the jury from finding the defendant guilty of the lesser included offense of assault with intent to commit statutory rape, by defining “assault” as a “threatening gesture,” of which, the defendant maintains, there was no evidence. See Commonwealth v. Roosnell, 143 Mass. 32, 40-42 (1886), holding that the
4. Much the same reasoning applies to the argument that the judge erred in failing to instruct the jury that lack of consent was an element of the several charges of indecent assault and battery of a person under fourteen. While the proposition was not expressly determined until Commonwealth v. Burke, 390 Mass, at 484-488, decided after the trial of the present case, the question was not so obscure as to excuse counsel’s failure to raise it.
5. In his instructions defining the concept of proof beyond a reasonable doubt, the judge stated that proof beyond a reasonable doubt does not require “proof beyond the possibility of innocence.” While “[e]xplanation of ‘reasonable doubt’ ... is usually best made in close reliance on the time-tested language of Commonwealth v. Webster, 5 Cush. 295, 320 [1850],” Commonwealth v. Gerald, 356 Mass. 386, 390 (1969), the language used here created far less risk of diluting the Webster charge than that used in such cases as Commonwealth v. Gerald, 356 Mass. at 389-390, Commonwealth v. Fielding, 371 Mass. 97, 116-117 (1976), and Commonwealth v.
Judgments affirmed.
The point was probably implicit in Commonwealth v. Eaton, 2 Mass. App. Ct. 113 (1974), which held that a common law assault was a lesser included offense within G. L. c. 265, § 13B. The words “assault and battery” have a well understood common law signification, precluding, in the range of physically unharmful touchings, consensual acts. Commonwealth v. Burke, 390 Mass. at 481-482. Moreover, the insertion by the Legislature, in 1980, of the offense of indecent assault and battery on a person who has attained age fourteen (G. L. c. 265, § 13H, as appearing in St. 1980, c. 459, § 5), the offense being defined, except as to age of the victim, identically to § 13B (which was rewritten by the same statute to revise the penalty provisions, see St. 1980, c. 459, § 4), strongly implied that consent must be a material factor. See Commonwealth v. Balthazar, 366 Mass. 298, 302 (1974).