438 Mass. 486 | Mass. | 2003
The defendant was tried before a jury in the Superior Court on indictments charging him
We set forth the facts that could have been found by the jury based on the Commonwealth’s evidence, in slightly more detail than did the Appeals Court. A few minutes after midnight on February 1, 1997, the victim drove to an American Legion Post in Chicopee (post), to see a man, the post’s bartender (whose first name was Steve), whom she had dated during the preceding month. Outside, snow had begun to fall. At about 1:30 a.m., the defendant, whom Steve knew, but whom the victim had never met, entered the post and sat down at the bar near to where the victim was seated. Steve, the defendant, and the victim conversed briefly, and the defendant showed the victim a game involving finding an owl on a five dollar bill. The victim was polite to the defendant, but found his behavior “odd.”
The victim, who lived in a different part of Chicopee from where the post was located, soon became confused on the unfamiliar streets and took a wrong turn. She eventually found herself at the end of a cul-de-sac in a residential neighborhood, her car stuck in the snow at the end of a driveway. It was now snowing heavily. Stepping out of her automobile intending to push it out of the snow, the victim saw the defendant walking around the back of her vehicle. The defendant chuckled and said, “What’s the matter, you’re stuck.” Feeling slightly afraid, the victim asked the defendant whether he lived there, and the defendant responded affirmatively.
Frightened, the victim stood still. The defendant moved his hand up to her shoulder, blocked the victim’s entrance to the vehicle, and repeated his order to unlock the back door. This time, the victim obeyed. Still grasping the victim, the defendant opened the back door and pushed her into the rear seat. Her daughter’s car seat was in the way, and the defendant yelled at the victim to remove it. The victim unbuckled the car seat, but did not remove it. The defendant became.angry and threw the car seat into the front seat. He then grabbed the victim, hit her chest, forced her into the back seat, squeezed her breasts hard,
Certain that the defendant was going to rape her, and uncertain whether he had a weapon, the victim felt frightened for her life. She testified that, aware that he was becoming angry, she “just turned to jelly, and ... let him do what he wanted to do.” As the victim lay crying, the defendant first inserted snow into her vagina, and then had sexual intercourse with her. Afterward, the defendant looked at the victim with an “evil look that just came over his face” and said, “You don’t expect me to let you leave now, do you, not after I just raped you? You have all the evidence on me. . . . You can get me arrested in a heartbeat. ... I can’t let you go.”
At that point, the defendant put his hands together in a fist and hit her on the back of her head, knocking her to the side of the road. When the victim asked why he had hit her, the defendant became extremely angry, made a “growling noise,” and charged at the victim’s throat. He grabbed the victim’s windpipe, completely cutting off her air. While holding her throat, the defendant told the victim, “Since I just got out of jail, I can’t expect you to live. I’m not going back, so I’m not going to let you live.” The victim struggled and managed to get the defendant’s hands off her throat, but he soon regained his grip and squeezed again. He immobilized the victim on her back on the ground by holding her throat and grabbing her hair, all the while making growling noises. The victim repeatedly begged the defendant to let her go, so that she could see her daughter “one more time.” Repeatedly, the defendant responded that he could not let her go home. He finally released her and the victim was able to roll over and stand up.
Playing for time, she walked slowly down the street. She again said to the defendant, “Please let me go home.” When the victim told the defendant that her daughter was in Springfield, he became enraged, charged at her, and accused her of lying, because the victim earlier had told him that she lived in Chicopee.
Still on her knees, the victim held snow to her face because she felt hot. When she pulled the snow away, she saw that her hand was full of blood. The defendant found her pack of cigarettes lying in the snow and tossed it to her. As she put a cigarette to her lips, the defendant again kicked her in the face. The victim asked, “What the hell did you do that for? ... I thought you were going to let me have a cigarette,” to which the defendant replied, “You don’t deserve anything.” He then tossed the victim to the ground on her stomach and began pounding on her back “like [she] was a piece of dirt.”
In an effort to pacify the defendant, the victim looked him right in the eye and spoke softly, saying, “Somebody must have hurt you in your past [and o]bviously, you don’t know me. Why are you taking it out on me?” The defendant finally calmed down and began crying. He helped her free her automobile, and the victim quickly got in. Immediately, the defendant moved to the driver’s side, stuck his arm through the partially opened front window, and pressed an electronic button to open the window fully. He then leaned through the window and asked, “Why are you leaving?” Fearful that he might hurt her again, the victim replied that she had to go to work and gave the defendant her telephone number. To appease his concerns about her bloody clothing or that she would notify the police, the victim told the defendant that she would “go home and throw [her sweater] in the wash, and my mother will be sleeping. No one will know.” At this point, the defendant said he was sorry, that the victim was “a nice person,” and that he “shouldn’t have done it.” At the moment the defendant stepped away from the car, the victim drove away. She arrived home ten minutes
The victim’s injuries included swelling of her lips and face; an abrasion or laceration on her lower Up; a two-inch laceration on her chin; bruising on the upper part of her throat and neck; a four-inch abrasion on the right side of her neck; bruising on her upper front chest and neck and across the top of her back; abrasions on her left knee and the back of her calf; and swelüng of her left wrist; swelling and redness of her external genitaUa; mild swelling of her anus; and a possible tear in the vaginal wall. Her clothing was wet and stained with blood. Blood covered her face and there were flecks of dried blood on her inner thighs.
The defendant was arrested later that same day. At trial, at the close of the Commonwealth’s evidence and again after the close of all the evidence, the defendant moved for a required finding of not guilty on the indictment charging him with aggravated rape, asserting that any physical violence that occurred, “occurred after, separate and distinct from the issue of the sexual intercourse,” and, as a consequence, the Commonwealth had failed to show an aggravating factor in the rape itself, as required by G. L. c. 265, § 22 (a). The trial judge denied the motions, stating that “a rational trier of the fact could conclude . . . that in the entire transaction, which included sexual assault as well as a physical assault at the same location and within a relatively discrete period of time without any intervening additional events, that all elements of [aggravated rape] had been proven beyond any reasonable doubt.”
The judge instructed the jury, along the lines of G. L. c. 265, § 22 (a), that, in order to convict the defendant of aggravated rape, they must find beyond a reasonable doubt that the rape either was “committed along with or resulted in serious bodily injury” to the victim, or that it was “committed during the commission of the crime of assault and battery by means of a dangerous weapon.” With respect to the first basis for conviction, the judge advised the jury that the acts that result in serious bodily injury need not occur at the precise moment of vaginal penetration, but that they must occur as part of “one
1. The defendant concedes, for purposes of this appeal, that he committed the offenses of rape and of assault and battery by means of a dangerous weapon.
General Laws c. 265, § 22 (a), set forth below,
While the language “committed with,” of course, implies some logical nexus between time and place, the words do not specifically require that the physical force precede the rape or that the injuries be inflicted to overcome a victim’s will to resist. If this were true, a person who savagely beat his victim following a sexual attack, as here, would be punished less severely than one who inflicted the beating before penetration, even though both rape victims sustained identical injuries.
There is no indication that the Legislature intended such an anomalous result. In 1974, the Legislature revised G. L. c. 265, § 22, defining the crime of rape as “sexual intercourse or unnatural sexual intercourse with a person” who is compelled to submit either “by force and against his will” or “by threat of bodily injury.” St. 1974, c. 474, § 1. In 1980, the Legislature again revised § 22, leaving unchanged the description of rape, but setting forth, in § 22 (a), a heightened penalty when specified aggravating factors are present. See St. 1980, c. 459, § 6. See also Aldoupolis v. Commonwealth, 386 Mass. 260, 267 n.10, cert. denied, 459 U.S. 864 (1982). The Legislature’s choice of the flexible terms “committed with” and “committed during,” rather than terms indicating a restrictive causal relationship, such as “accomplished by” or “facilitated by,” demonstrates its intent to avoid a limiting temporal distinction.
This commonsense interpretation of G. L. c. 265, § 22 (a), is consistent with the manner in which we have interpreted other
Our interpretation also is consistent with the approach taken by the Model Penal Code, the provisions of which have guided our interpretation of our rape statutes in the past. See Commonwealth v. Gallant, 373 Mass. 577, 588-589 (1977). The Model Penal Code divides the offense of rape into three felony levels, with the most serious category (corresponding to the offense of aggravated rape) reserved for those instances in which the victim is “not a voluntary social companion” of the defendant and “had not previously permitted him sexual liberties,” or when the actor inflicts serious bodily injury on anyone “in the course thereof.” Model Penal Code, supra at § 213.1.
We repeatedly have stated that “[t]he essence of the crime of
It remains for the jury to consider each case on its own facts and to determine whether there is an adequate nexus between the unlawful sexual intercourse and the serious bodily injury or the acts constituting one of the enumerated offenses. This is a task jurors commonly are called to make. The jury are entitled to consider the entire sequence of events in making their determination whether the aggravating acts occurred in the course of the rape, or whether, because of intervening time or events, the rape and the aggravating acts cannot be viewed as one continuous course of criminal conduct directed at the victim, and so may find the defendant guilty of two separate offenses, but not of aggravated rape.
2. The judgment of conviction of aggravated rape is affirmed.
So ordered.
The indictments identified the defendant as “Francis McCourt, also known as Kevin Michael Barscz, also known as Kevin McCourt.”
The Appeals Court concluded that the Commonwealth’s evidence was sufficient to support a conviction of rape under G. L. c. 265, § 22 (b), and, because the jury necessarily had found that the defendant had raped the victim, remanded the case to the Superior Court for resentencing on the offense of rape. See Commonwealth v. McCourt, 54 Mass. App. Ct. 673, 681-682 (2002). The defendant’s remaining judgments of conviction, which play no part in this appeal, were affirmed. See id. at 682.
At the same time, we denied the defendant’s application for further appellate review, principally because we agreed with the Appeals Court’s decision with respect to the issues raised by his appellate counsel and by his pro se appellate brief. See Commonwealth v. McCourt, supra at 673-674 n.1.
This was untrue. The defendant told police, and testified at trial, that he had waited outside the American Legion post until the victim emerged, followed her automobile until it became stuck in the snow, and then had consensual sexual intercourse with the victim.
The victim testified that her daughter at the time was with her father, who lived in Springfield.
At trial, the Commonwealth introduced in evidence a pair of work boots, which the defendant was wearing at the time of his arrest. The defendant testified that he had worn the same pair of boots during the incident with the victim in the early morning hours that same day.
He also does not argue that the victim did not sustain “serious bodily injury,” as that term is used in the context of G. L. c. 265, § 22 (a).
General Laws c. 265, § 22 (a), reads:
“Whoever has sexual intercourse or unnatural sexual intercourse with a person, and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury and if either such sexual intercourse or unnatural sexual intercourse results in or is committed with acts resulting in serious bodily injury, or is committed by a joint enterprise, or is committed during the commission or attempted commission of an offense defined in section fifteen A [assault and battery by means of a dangerous weapon], fifteen B [as*493 sault by means of a dangerous weapon], seventeen [armed robbery], nineteen [unarmed robbery] or twenty-six [kidnapping] of this chapter, section fourteen [armed burglary], fifteen [unarmed burglary], sixteen [breaking and entering in the night time with intent to commit a felony], seventeen [breaking and entering in the daytime or entering without breaking in the night time] or eighteen [entering dwelling house in the night time] of chapter two hundred and sixty-six or section ten [firearms and dangerous weapon] of chapter two hundred and sixty-nine shall be punished by imprisonment in the state prison for life or for any term of years.”
Three decisions from other State appellate courts, cited by the Commonwealth, merit mention. Although interpreting slightly different language of their own aggravated rape statutes, each decision focuses on the court’s conclusion that bodily injury is sufficiently connected to a sexual assault whenever a series of incidents forms one continuous “transaction,” regardless of whether a beating precedes or follows the sexual abuse. See State v. Carter,
Although rape is a crime of violence, the force used to accomplish the rape need not be physical force. See Commonwealth v. Caracciola, 409 Mass. 648, 652 (1991).
We reject the defendant’s contention that the history of St. 1980, c. 459, § 6 (specifically, the Legislature’s exclusion of language contained in the original Senate bill, 1980 Senate Doc. No. 1006, that would have required the rape to occur “in conjunction with” the aggravating acts, and its rejection of a proposed amendment, 1980 House Doc. No. 6776, § 13, that would have included as aggravating offenses the crimes of assault with intent to murder, G. L. c. 265, § 15, and assault with intent to rob or murder while armed with a dangerous weapon, G. L. c. 265, § 18), reflects a legislative intent different from that described above.
The defendant relies on Commonwealth v. Kickery, 31 Mass. App. Ct. 720 (1991), in which the Appeals Court reversed the defendant’s conviction of aggravated rape on the ground that the rape did not occur “during the commission” of the kidnapping, as required by G. L. c. 265, § 22 (a). See id. at 724. The Appeals Court reasoned that, because the evidence showed that the victim had willingly accompanied the defendant to the spot where she was raped, the defendant’s subsequent acts of tying her to a tree and leaving her there, while sufficient to constitute kidnapping, took place after the rape and, thus, were “separate and distinct” from the rape. See id. at 723-724. The Kickery decision is inconsistent with what we hold today. We recently referred to the Kickery decision in Commonwealth v. Maynard, 436 Mass. 558, 567-568 (2002), in response to an argument made by the defendant that physical restraint, in order to facilitate separate assaults on a victim, does not constitute kidnapping. See Commonwealth v. Maynard, supra (distinguishing Kickery on its facts). The Maynard decision did not raise any issue with respect to the requirements of G. L. c. 265, § 22 (a), and our discussion of the Kickery decision was not meant to address the issue decided today. We conclude that Commonwealth v. Kickery, supra, cannot stand under our interpretation set forth above and, therefore, we overrule it.
The judge correctly instructed the jury on both theories of aggravated rape, and the defendant does not argue otherwise.