33 Mass. App. Ct. 85 | Mass. App. Ct. | 1992
About 3:00 a.m., on June 1, 1989, the victim was walking to her bathroom when she was grabbed, choked, forced back to her bed, and raped. On his appeal from convictions by a jury on indictments charging him with burglary and aggravated rape, the defendant claims that the integrity of the grand jury proceedings was substantially impaired by police misconduct, that there was insufficient evidence to establish his guilt, and that there was a prejudicial variance between the crime charged (aggravated rape) and proved. We affirm the convictions.
1. The evidence. It was the victim’s testimony that she was divorced and lived alone in her house. She mentioned to her hairdresser, the defendant’s mother, that she needed someone to do her yard work. Arrangements were made for one of the defendant’s younger brothers to care for the victim’s yard. Because he was not immediately available, the defendant, who was going to New York in June, filled in for him during May.
When the defendant worked in the victim’s yard, she would invite him into her home for refreshments and allow him to use her telephone. On at least one occasion, she left him alone in the house. Over-all, the victim treated the defendant, as if he were her grandson.
On May 31, the- defendant went to the victim’s house to pick up a check for work that he had done earlier in the day. The victim paid him and wished him well on his trip to New York. She did not expect to see him again. That night she entertained friends in her home. They left at 10:30 p.m., and she retired a short time later, about 11:15 p.m.
Some four hours later, the victim awakened and started towards her bathroom. She had not gone far when she was grabbed by the arm with such force that she fell. The victim recognized the defendant immediately. She thought of fleeing and asked to use the bathroom. Realizing that the window was too small for any escape, the victim returned to the bedroom. She was afraid of the defendant who twice had exerted
After the defendant raped her, the victim attempted to remain calm so that the defendant would leave the house. She engaged him in small talk, asking what he had done earlier in the evening and whether he would like some lemonade. When they went into the kitchen, the victim noticed that the defendant’s sneakers were on the side deck to the house, just outside the sliding glass door leading into the kitchen. She asked him where his car was, and he answered that he had walked to her house. After the defendant left, the victim called the police.
Police officers testified as to their observations of the victim. They described her as almost hysterical, sick to her stomach, and covered with fresh bruises. She was taken to the hospital.
Two officers went to the defendant’s house and, after reading him his Miranda rights, spoke to him in the presence of his father. He told the police that he and his brother had been at a party and that they had arrived home at 2:30 a.m. The police arrested him and brought him to the police station. At the station, the defendant told the police that he had not seen the victim since 4:00 p.m., the previous day. He and his brother had been to a “keg party” until 1:00 a.m., and, when they left, they went directly home and did not go out again. The police returned to the defendant’s house and retrieved a pair of water-soaked sneakers from a hallway.
The defendant testified that, when he stopped at the victim’s house on May 31, to pick up his check, they engaged in some conversation. She asked what his plans for that night were, and he told her that he was going out with friends. He said that the victim gave him a certain “look” to imply that there might be “something” going on between them, and she asked him to “stop by anyhow.”
On his way home from the party, the defendant drove into the victim’s driveway, left his brother asleep in the car, and
Witnesses verified the presence of the defendant and his brother at the party, setting their departure at 1:00 a.m. The defendant’s father testified that he remembered the time they arrived home, 2:00 a.m., because they set off the house alarm.
2. The grand jury proceedings. It is the defendant’s claim that a police officer made a false and deceptive statement to the grand jury in order to obtain the indictments and that, therefore, the charges must be dismissed. The officer told the grand jury that, upon her arrival at the defendant’s house, he refused to answer any questions or speak with the police until he first spoke with an attorney. The prosecutor instructed the grand jurors that they “should draw no inferences adverse to the defendant because he chose to exercise his right to remain silent and asked to speak to a lawyer.”
We agree with the Superior Court judge’s strong disapproval of informing a grand jury that a suspect elected to exercise his right to remain silent. We also agree with his conclusion that this information did not impair the integrity of those proceedings in the present case. ,
Assuming without deciding (the Commonwealth argues that the officer’s statement is taken out of context) that the officer gave misleading information for the purpose of obtaining the indictments, we do not think that this information “probably influenced the grand jury’s determination to indict the defendant.” Commonwealth v. Kelcourse, 404 Mass. 466, 468 (1989), citing Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986). It may be that, had the grand jury
Because it would be too perverse to do otherwise, we do not recognize a defendant as having any right to argue that a grand jury should have been informed either of his statements to, or his purported cooperation with, the police when it is admitted subsequent to those proceedings that the volunteered information was false.
Evidence was presented to the grand jury to show that the defendant took care of the victim’s yard, that, on the date in question, he entered her house by opening a sliding door, that he grabbed her by her throat, that a struggle ensued, and that he raped her. The victim’s emotional and physical condition were described, and her statement that she saw his white sneakers outside her door was related. The grand jury were also told that a pair of wet, white sneakers were found in a hallway of the defendant’s house.
Our review of the grand jury transcript leads us to conclude that the defendant did not sustain his burden of showing that the reference to his refusal to answer questions probably influenced the grand jury’s decision to indict him. See Commonwealth v. Kelcourse, 404 Mass. at 467-469. The motion to dismiss was rightly denied.
3. Evidence of the breaking and entering. Little discussion is warranted in disposing of the defendant’s claim that he was entitled to a required finding of not guilty on the indictment charging him with breaking and entering. In making this argument, the defendant relies upon the lack of evidence of a forced entry and the victim’s testimony that her front door and four sliders were locked.
Moreover, no objections were taken to the testimony of the police officers who testified that, on the date in question, the victim told them that she always left the kitchen slider unlocked and that the defendant was aware of that fact. The jury reasonably could infer from all the evidence, including the victim’s testimony that the defendant was in the house when she awoke, that he had entered through the closed slider door to the kitchen. See Commonwealth v. Tilley, 355 Mass. 507 (1969); Commonwealth v. Burke, 392 Mass. 688, 689-690 (1984).
4. The aggravated rape charge. In charging the defendant with aggravated rape, see G. L. c. 265, § 22, the Commonwealth identified the predicate crime as being “burglary as defined in . . . [G. L.] c. 266, § 18.” Section 18 speaks to a night time entry of a “dwelling house without breaking.” The defendant focuses upon the reference in the indictment to § 18 and argues that, because the case was presented and submitted to the jury on a theory neither alleged nor proved, breaking and entering, he was entitled to a required finding of not guilty.
This argument fails. The indictment under G. L. c. 265, § 22, was in the statutory form, and it was unnecessary for the Commonwealth to identify the predicate crime. See G. L. c. 277, §§ 33 & 39; Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979). Nonetheless, the Commonwealth did so, and the question becomes whether the defendant was prejudiced by the reference to § 18. See Smith, Criminal Practice & Procedure § 725 (2d ed. 1983).
In view of these facts, we do not accept the defendant’s argument that he was prejudiced in his defense in that he was prepared to defend against an entry but not a breaking. There being no prejudice to the defendant from any misstatement in the indictment charging him with aggravated rape or any variance between the recital of the essential elements of that crime and the proof, the motion for a required finding of not guilty was properly denied. See Commonwealth v. Clark, 5 Mass. App. Ct. 673, 677-678 (1977), and cases therein cited.
Judgments affirmed.
At the time of trial, the victim was fifty-three years of age, and the defendant was nineteen.
Any falsehood known to the Commonwealth at the time of the grand jury proceedings may, of course, be relevant evidence of consciousness of guilt.