COMMONWEALTH vs. JOSEPH CARACCIOLA
Supreme Judicial Court of Massachusetts
April 3, 1991
409 Mass. 648
Hampden. October 1, 1990. Present: LIACOS, C.J., WILKINS, ABRAMS, NOLAN, & O‘CONNOR, JJ.
A motion to dismiss a rape indictment was an appropriate means to test whether evidence of criminality had been presented to the grand jury. [650]
In a prosecution for rape, proof of the defendant‘s threats, which included statements that he was a police officer and would imprison the complainant if she did not obey him, when considered with the circumstances created by the defendant‘s conduct and words, would be sufficient to constitute the force contemplated by the rape statute,
INDICTMENT found and returned in the Superior Court Department on September 21, 1988.
A mоtion to dismiss was heard by William W. Simons, J., and a question of law was reported by him to the Appeals Court. The Supreme Judicial Court granted a request for direct review.
Andrew Silverman, Committee for Public Counsel Services (Richard Rubin, Committee for Public Counsel Services, with him) for the defendant.
Christina Calabrese, Assistant District Attorney, for the Commonwealth.
ABRAMS, J. The defendant was indicted on a charge of rape under
The judge summarized the grand jury testimony as follows. The defendant, who is not a police officer, pulled his vehicle alongside the victim on a downtown Springfield street. He told the victim to get off the street. She noticed that he was wearing a gun. The victim left and went to the bus station to make a telephone call. After watching her for a while, the defendant approached the victim again and said, “I thought I told you to get lost.” The defendant told the victim to get in the automobile, and she obeyed. The defendant drove in what the victim believed to be the direction of the police station. The victim began to cry and the defendant told her thаt if she did not stop crying he would “lock [her] up for more things than [he] was planning on.”1 The defendant started to drive her home but stopped in a school parking lot instead. He began to touch her and rub her legs. The victim told him she was scared and that police officers came by that area often. He said not to be afraid, because he was a police officer.2 He made her get on top of him and have sexual intercourse. She said that she feared that if she did not do what he wanted, he would arrest her.3
The judge determined that there was no evidence presented to the grand jury that the defendant used force on the victim. He concluded that the motion to dismiss shоuld
“The better practice is for a judge to decide the issues raised by a defendant‘s motion to dismiss. In the event of conviction, appellate review is available to a defendant.... If the motion to dismiss is allowed, the Commonwealth has the right to appeal. See Mass. R. Crim. P. 15 (a), 378 Mass. 882 (1979).” Commonwealth v. Fitta, 391 Mass. 394, 398 (1984). We allowed the defendant‘s application for direct appellate review. We conclude that the motion to dismiss should be denied.
Although it is “the well established principle that the adequacy of the evidence presented to the grand jury cannot be tested by a mоtion to dismiss,” Commonwealth v. Robinson, 373 Mass. 591, 592 (1977), in the McCarthy case we carved out a very limited departure from this principle where no evidence of criminality was presented to the grand jury. McCarthy, supra at 163. We ruled that the prosecutor must present sufficient evidence to establish the identity of the accused, and probable cause to arrest him or her. See id. However, the “requirement of sufficient evidence to establish [these two facts] is considerably less exacting than a requirement of sufficient evidence to warrant a guilty finding.” Commonwealth v. O‘Dell, 392 Mass. 445, 451 (1984). With these principles in mind, we turn to the judge‘s determination that the motion to dismiss pursuant to McCarthy should be allowed.
We do not agree with the judge‘s assessment that no evidence was presented to satisfy the statutory words “by force and against [her] will.” The words of the statute are not limited solely to physical force.6 We previously have recognized that a defendant can be guilty of rape without having used or threatened physical force if the consent of the complаinant was obtained from the victim‘s fear arising from threats or conduct of a third party. See Commonwealth v. Therrien, 383 Mass. 529, 538-539 (1981). We also have held that a rape occurs where intercourse is had with only “such force as was necessary to accomplish the purpose” when the victim was “wholly insensible so as to be incapable of consenting.” Commonwealth v. Burke, 105 Mass. 376, 380-381 (1870). Likewise have we instructed that the jury is entitled to “consider the entire sequence of events and acts of [the] defendants as it affected the victim‘s ability to resist.” Commonwealth v. Sherry, 386 Mass. 682, 688 (1982). We do not require victims to use physical force to resist an attack. See id. These cases are cited to illustrate the point that an examination of the circumstances or feаr in which the victim is placed, the impact of those circumstances or fear on the victim‘s power to resist and the defendant‘s conduct all are relevant to the determination whether conduct complained of by the victim was accomplished by force and against the victim‘s will. No case has held that rape is limited solely to the
Because robbery and rape are both crimes of violence, there is no reason to conclude the Legislature assigned a different, more limited meaning to the word “force” in the rape statute from its meaning in the robbery statutе. In discussing the word force as used in robbery, the court said that “actual force is applied to the body, constructive force is by threatening words or gestures and operates on the mind.” Commonwealth v. Novicki, 324 Mass. 461, 467 (1949), quoting Commonwealth v. Snelling, 4 Binn. 379, 383 (Pa. 1812) (robbery). See also Commonwealth v. Richards, 363 Mass. 299, 304 (1973) (robbery). In robbery cases, we said that “[w]hether actual or constructive force is employed, the degree of force is immaterial so long as it is sufficient to obtain the victim‘s property ‘against his will.‘” Commonwealth v. Jones, 362 Mass. 83, 87 (1972). Thus, a purse snatching that is accomplished with force “sufficient to produce awareness, although the action may be so swift as to leave the victim momentarily in a dazed condition,” is considered a robbery rather than a larceny which is theft without force. Id. at 89. Moreover, a victim‘s statement that “I was scared to death” is sufficient to show the use of force if the jury decides that “her fear aided the defendant in effecting the taking.” Id. The defendant‘s argument that physical force is a required element in rape cases asks us to assume that the Legislature intended to give greater protection to property than to bodily integrity. We decline to make such an unwarranted assumption.
Relying on Commonwealth v. Goldenberg, 338 Mass. 377 (1959), the defendant asserts that, because he was not a police officer, his statements are merely fraudulent, and fraud is not force. Therefore, he concludes that his motion to dismiss should be allowed. We do not agree. We think the defendant‘s lie about being a police officer is irrelevant. The complainant was entitled to take the defendant‘s threatening words and his conduct at face value. Those threats and the circumstances created by his conduct and his words are suffi-
The statute requires that the Commonwealth prove its case by demonstrating that the person charged has sexual intercourse or unnatural sexual intercourse with a person either “by force and against his will” or “by threat of bodily injury.” See
Applying the statutory language to the evidence presented, we conclude there was evidence of force and constraint of the victim‘s will. The evidence indicates that the defendant wore a gun; that he ordered the victim into his car; that he named a number of police officers; that he gave her a false name; and that he told her he was a police officer, and would imprison her if she did not obey him. The defendant made the complainant beg him not to “lock her up.” The facts indicate that the woman was “petrified” by the defendant‘s threats that he would “lоck her up.” The issue whether, in light of the circumstances, the victim‘s obedience or submission to the defendant‘s threats was by force and against her will is for the petit jury.
The evidence before the grand jury was similar to that found sufficient to support rape convictions in cases from other jurisdictions. In State v. Burke, 522 A.2d 725 (R.I. 1987), the defendant, a uniformed police officer with a gun, told the victim to get into his cruiser. She complied because she was afraid. He drove her to his house and forced her to
So ordered.
O‘CONNOR, J. (dissenting). “At common law, rape was defined as ‘the carnal knowledge of a woman forcibly and against her will.’ 4 W. Blackstone, Commentaries 210 (1778).” Commonwealth v. Chretien, 383 Mass. 123, 127 (1981). The Charters and General Laws of the Colony and Province of Massachusetts Bay, c. 18, § 15 (1814), provided in relevant part: “If any man shall ravish any maid, or single woman, committing carnal copulation with her by force, against her own will . . . he shall be punished. . . .” Id. Prior to the amendment of G. L. c. 265, § 22 (Ter. Ed.) (defining and punishing rape), and
Thus, for several hundred years, a proper understanding of the word “force,” as used in the Commonwealth‘s rape statutes, has been critical to their application, and nothing suggests that, as successor statutes or amendments were enacted, the Legislature intended a redefinition of that term. Nevertheless, not until today has this court discovеred that the Legislature, presumably from the beginning, has intended “force” in rape to include constructive, as well as physical, force. The very lateness of the court‘s discovery makes it questionable. This is especially so when one considers the principle, deeply imbedded in our jurisprudence, that criminal statutes are to be strictly construed against the Commonwealth. I do not agree that the word, “force,” in
One may well argue that there ought to be a law criminalizing the kind of conduct ascribed to the defendant before the grand jury and that the range of penalties ought to be the same as provided in
Citing Commonwealth v. Therrien, 383 Mass. 529, 538-539 (1981), the court states that “[w]e previously have recognized that a defendant can be guilty of rape without having used or threatened physical force if the consent of the complainant was obtained from the victim‘s fear arising from threats or conduct of a third party.” Ante at 651. The court implies that Therrien provides support for the proposition that neither physical force nor the threat of bodily injury is necessary for rape, and that some other kind of threat will suffice. Therrien does not support that proposition. In Therrien, the defendant was one of three men who had had intercourse with a woman. The defendant did not personally use physical force on the victim or threaten her with bodily harm, but his conduct followed, and took advantage of, the use of force in his presence by the other two men to compel the victim to submit to intercourse with them. In concluding that the evidence warranted a finding that the defendant was guilty of rape, the court reasoned that, “[i]f the victim appears to consent to intercourse because of a threat of a third person or because of fears arising from actions of a third person, and a defendant knew of those threats or of the circumstances causing those fears, such a defendant could properly be found guilty of rape.” Id. at 538-539. Therrien only stands for the principle that a defendant can be found to
The victim in this case told the grand jury that the defendant, wearing a gun, told her to get into the car with him and that he started driving toward the police station. She said that she “started to cry and he said that if [she] cried he would lock [her] up for more things than he was planning on. He made [her] beg him not to lock [her] up.” Explaining why she submitted to intercourse, the victim testified: “I felt that if I did not do what he wanted, he was going to arrest me. . . . I was really scared. I was petrified he was going to put me in jail. I had a prior criminal reсord and I felt if I got arrested one more time I was going to go to Framingham.” There was no suggestion in the victim‘s testimony that she submitted to intercourse because of a threat of bodily injury. The victim‘s testimony was clear. She submitted in order to avoid arrest, prosecution, and resulting imprisonment. Surely, there is nothing in Therrien that implies that one who obtains intercourse by fraudulently impersonating a police officer and threatening the victim with arrest, prosecution, and imprisonment violates
The court states: “No case has held that rape is limited solely to the use of physical force. Indeed, the words of the statute are to the contrary.” Ante at 651-652. Of course, I do not contend that rape is limited sоlely to the use of physical force. As the statute expressly provides, rape also includes threat of bodily injury as a means to compel intercourse. My contention is that rape consists of a use of physical force or a threat to do bodily injury — related concepts — in order to compel a person to submit to sexual intercourse. If the court‘s intention is simply to point out that we have never before said that the word, “force,” in our rape statute is limited to physical force, my response is that apparently, despite the resourcefulness of prosecutors, no one ever before has argued to this court that a rape may be committed without
The out-of-State cases mentioned by the court warrant little discussion. I shall refrain from distinguishing the out-of-State statutes from
I turn to the court‘s argument that, “[b]ecause robbery and rape are both crimes of violence, there is no reason to conclude the Legislature assigned a different, more limited meaning to the word ‘force’ in the rape statute from its meaning in the robbery statute.” Ante at 652. The court‘s argument seems to assume that the word, “force,” in the robbery statutes,
The court‘s construction of
There is one more ancient aid to statutory construction that the court has chosen to ignore: “Expressio unius est exclusio alterius.” Iannella v. Fire Comm‘r of Boston, 331 Mass. 250, 252 (1954). “[T]he statutory expression of one thing is an implied exclusion of other things omitted from the statute.” Collatos v. Boston Retirement Bd., 396 Mass. 684, 687 (1986). Commonwealth v. Berkshire Life Ins. Co., 98 Mass. 25, 29 (1867).