12 Mass. App. Ct. 317 | Mass. App. Ct. | 1981
This is an appeal from a conviction on an indictment charging rape. The defendant was acquitted on another indictment charging assault with intent to commit rape.
The defendant argues that the charge to the jury was improper in several respects. No objection was made to any part of it; we examine the charge only to determine whether there is a substantial likelihood of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). Commonwealth v. Perry, 3 Mass. App. Ct. 308, 311 (1975).
The defendant argues that the judge, in effect, directed a verdict of guilty in that part of the charge which we set out
The district attorney informed us at oral argument that the transcript accurately reported the charge as given, and we agree with the defendant that the effect of the language standing alone was to direct a verdict for the Commonwealth. While it would appear that the judge intended to
The case turned principally on the credibility of the participants. Apart from the testimony of the victim, the only other evidence introduced by the Commonwealth was that of two police officers whose testimony was mainly concerned with the story they had received from the victim. The victim’s testimony was contradicted not only by the defendant but also by the defendant’s wife. The latter testified to hearing “the noise of the couch ... a certain creak to it when you make love on it” and observing her sister and her husband having sexual intercourse. She told her sister to “[g]et the hell out of my apartment and if you want my husband that badly, you can take him with you.” When the pair did not leave, she went to a neighbor’s home and had the neighbor call the police “[bjecause they wouldn’t leave my apartment.”
It is our view that the trial transcript does not disclose a strong case against the defendant, and in the circumstances we are satisfied that the erroneous portion of the charge created a substantial risk of a miscarriage of justice. See Commonwealth v. Borges, 2 Mass. App. Ct. 869 (1974); Commonwealth v. Cote, 5 Mass. App. Ct. 365, 369 (1977); Commonwealth v. Anslono, 9 Mass. App. Ct. 867 (1980). Contrast Commonwealth v. Hanscomb, 367 Mass. 726, 731 (1975); Commonwealth v. Perry, supra at 311.
There are two other issues which are properly before us and which may arise at a retrial.
1. The defendant’s claim of error in the admission of evidence of a complaint by the victim to two police officers about three hours after the incident, without the judge’s having made a preliminary finding that the complaint was fresh, is without merit. Commonwealth v. McGrath, 364 Mass. 243, 247 (1973). See Commonwealth v. Lund, 5 Mass. App. Ct. 884 (1977). It was obvious from the testimony laying the foundation for the admission of the fresh complaint evidence that the statements were admissible, and the judge so ruled (“it is certainly fresh complaint”) when testimony of it was first offered.
2. The offered testimony of the defendant’s brother that on one occasion the victim had tried “to get [the defendant] to go to her house with her after [a] party” was properly excluded if for no other reason than it was not shown that the evidence was current, as there was no indication whether the words had been spoken days, weeks, months, or even years
Judgment reversed.
Verdict set aside.
“All presumptions of law, independent of evidence, are in favor of innocence, that every person is presumed to be innocent until he is proven guilty. If upon such proof there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal. For it is not sufficient to establish a probability arising from the doctrine of chance that the fact charged is more likely to be true than the contrary. The evidence must establish the truth of the fact to a reasonable and to a moral certainty.
“The defendant’s rights to hold the government to the strictest proof and compliance with the requirements of law is an absolute right. No consideration of public safety, no righteous indignation, no zeal for the suppression of crime can give to this Court or you jurors any reason to relax the rule of law, or explain the evidence to any conclusion not warranted by fair or convincing forces.
“The government of this Commonwealth is a government of law, not a government of men. We don’t apply those laws as we choose to. If you jurors observe your oath and render a true verdict according to the evidence, then the community and every citizen in it can ask no more and shall be the safer therefore, whatever your verdict.
“Since the law rules in this Commonwealth, I cannot — quoting from the court decision — state this principle too strongly. That I should fail jurors in my duty if I did not, with equal emphasis, remind you that the community is not the safer if all of the rights of those charged with crime are recognized and guarded. The rights of the people of the Commonwealth, whom you represent here today, to have a verdict commensurate with its proof, is as absolute and sacred in this case as the right of this and any other defendant. It is established upon the evidence here beyond a reasonable doubt to that degree of certainty that I have described.
“You have no discretion which permits you to acquit the defendant. If a verdict of guilty is withheld under those circumstances, the law does not rule, but uncertainty and arbitrary will of men rules and not the law.
“And if, on the other hand, as I have told you and again I will tell you, at the conclusion of your deliberations if there lurks in your minds, as reasonable men and women, any reasonable doubt as to the guilt of this defendant, then he is entitled to the benefit of that by a right which is equal to but not superior to the rights of the Commonwealth to a conviction if you are so satisfied.” (Emphasis supplied.)
As the evidence was properly admitted, we fail to see how the defendant was harmed by reference to it in the prosecutor’s opening statement. See Commonwealth v. Fazio, 375 Mass. 451, 454 (1978).
There was testimony that the victim and the defendant had known each other for many years.