456 Mass. 52 | Mass. | 2010
Kevin G. Medeiros (defendant) and Walter Watson, Jr., were tried together before a jury for crimes arising out of a young woman’s allegations of rape. They both were charged
We granted the defendant’s application for further appellate review principally to consider whether the defendant’s conviction of aggravated rape must be reversed because Watson, the sole other participant in the rape, was acquitted of the same charge at the same trial. Because the charge of aggravated rape rested on the act’s commission by “joint enterprise,” G. L. c. 265, § 22 (a),
Trial. The Commonwealth called only one witness, the victim. She testified to the following sequence of events. On July 1, 2003, the defendant and Watson arrived at the Knight Look Campground in Rochester, where the victim lived with her
After the defendant left, the victim returned home to her campsite at about 3 a.m. She did not awaken her mother or stepfather because she feared her mother would be angry with her. The next day, her mother announced that the victim had been staying out too late and that she would be sent to spend the rest of the summer with her father in New Hampshire. The mother went to telephone him. The mother then heard a rumor concerning the victim and the defendant, and she confronted the victim about it when she returned. At that point, the victim told her mother that she had been raped. The police arrived and the victim was transported to a hospital. There, the victim was examined by a physician and a sexual assault nurse examiner (SANE nurse).
The medical records of the victim’s hospital care were admitted in evidence and submitted to the jury in the form of an exhibit. Before their admission, defense counsel attempted to impeach the victim with the SANE nurse’s report of her interview and examination. The judge sustained the Commonwealth’s objection that it was impermissible to impeach the victim with the statement of someone else. It was then suggested by defense counsel that the medical records themselves could be introduced in evidence. The judge noted that the records had not been subpoenaed in accord with the requirements of either G. L. c. 233, § 79, or G. L. c. 233, § 79G,
The medical records indicated that the victim told the SANE nurse that she had been raped vaginally but not orally.
The theory of the defense was that the victim had fabricated her story to scuttle her mother’s plan to send her to New Hampshire. In support of that theory, defense counsel elicited testimony from the victim that she did not want to go to New Hampshire and that she perceived her mother’s decision as a punishment. Defense counsel also pointed out that the victim did not cry out for help despite the fact that the tent in which she claimed to have been raped was in the immediate vicinity of other campground residents’ tents and campers, and that she did not seek assistance in any way until she was confronted by her mother. Additionally, defense counsel underscored, both on cross-examination and in closing argument, the dearth of evidence of physical trauma, and the inconsistencies between the lack of such evidence in the medical records and the victim’s testimony that the rape lasted for over two hours. Finally, defense counsel emphasized that the victim’s story had changed over time, that her medical records were not consistent with the story she had just told the jury, and that she had not mentioned the defendant forcing her to have oral sex with him until she was interviewed by the prosecutor in preparation for trial three years after the incident.
We begin by addressing the defendant’s conviction of aggravated rape, and then proceed to consider his claims of ineffective assistance of counsel.
Discussion. 1. Inconsistent verdicts. The defendant argues that his conviction of aggravated rape by reason of joint enterprise must be reversed because the jury simultaneously acquitted the sole other member of the joint enterprise. While his argument has the benefit of logic — how can one commit a joint enterprise alone? — the law of inconsistent verdicts is not so straightforward, and the “breed of ‘inconsistent’ verdicts which is not allowed to
“[T]he rule is well established in criminal cases that mere inconsistency in verdicts, one of which is an acquittal, will not render the verdict of guilty erroneous even though such inconsistency may have indicated the possibility of compromise on the part of the jury.” Id. See United States v. Powell, 469 U.S. 57, 64-66 (1984); Dunn v. United States, 284 U.S. 390, 393-394 (1932); Commonwealth v. Gonzalez, 452 Mass. 142, 150-152 (2008); Commonwealth v. Cerveny, 387 Mass. 280, 285-286 (1982). There are two principal reasons for this rule. The first is that each charge represents a separate indictment that may stand or fall on its own. See Dunn v. United States, supra at 393; Commonwealth v. Scott, supra. The second is our reluctance to subject a jury’s verdicts to logical scrutiny: there are “any number of factors having nothing to do with the defendant’s actual guilt” that can drive an acquittal. See Commonwealth v. Cerveny, supra at 285. For example, a not guilty verdict “may result from . . . compassion or prejudice,” yet the prosecution is “powerless to seek a judgment notwithstanding the verdict [of acquittal] or a new trial on the ground that the verdict is against the weight of the evidence.” Id.
We have applied this rule in a wide variety of circumstances where an apparent inconsistency of verdicts has been argued as grounds for reversal. For example, we have declined to upset a conviction of armed robbery where the defendant was acquitted of carrying the shotgun that the evidence at trial suggested he carried during the robbery. See Commonwealth v. Hamilton, 411 Mass. 313, 323-324 (1991). Similarly, we have not required reversal where defendants are tried together for their alleged involvement in a single crime, and one is convicted and the other acquitted, see Commonwealth v. Connearney, 359 Mass. 200, 202-203 (1971); Commonwealth v. Clements, 51 Mass. App. Ct. 508, 523 (2001), S.C., 436 Mass. 190 (2002), or where they are tried separately and different verdicts are returned. See Commonwealth v. Jones, 403 Mass. 279, 289-290 (1988); Commonwealth v. Cerveny, supra. In reviewing the convictions in such cases, we decline to disturb the jury’s guilty verdicts provided there is suf
In limited circumstances, however, we are sufficiently troubled by verdicts that involve inconsistent determinations of guilt as to require judicial intervention. First, we will set aside guilty verdicts that are “impossible at law.” Commonwealth v. Sherry, 386 Mass. 682, 698 (1982), and cases cited. Such verdicts involve convictions of crimes that are mutually exclusive. For example, in Commonwealth v. Carson, 349 Mass. 430, 434-436 (1965), the defendant was convicted of larceny of stock as well as larceny of the money garnered from the sale of that stock. Similarly, in Commonwealth v. Haskins, 128 Mass. 60, 61 (1880), the defendant was convicted of larceny of goods and receipt of the same goods.
We have also reversed convictions in cases of a single trial for conspiracy in which all but one of the alleged conspirators are acquitted of the charge. See Commonwealth v. Cerveny, supra; Commonwealth v. Benesch, 290 Mass. 125, 135-136 (1935). See also Commonwealth v. Slate, 11 Gray 60, 63 (1858) (discussing crimes of conspiracy and riot). The rule that we have applied in such cases is based on the rationale that “one cannot be a con
Conspiracy is the textbook crime for which a combination of individuals is necessary. See Commonwealth v. Benesch, supra. The conspiracy is complete at the moment an agreement is made, that is, on the meeting of at least two minds. See Commonwealth v. Frazier, 410 Mass. 235, 245 (1991). In the past, the crime of riot also required multiple individuals.
Moreover, when a jury return inconsistent verdicts in a single trial for crimes requiring a “united act,” the reasons for leaving jury decisions undisturbed become more attenuated. The possibility that the jury merely showed compassion to all but one defendant is counteracted by the concern that the jury may have fundamentally misunderstood the nature of the crime charged and convicted the defendant even though the Commonwealth did not prove an essential element of the crime beyond a reasonable doubt, namely, the concerted action of at least two people.
We examine the specific circumstances of the case to discern whether there has been “serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). This is a practical, pragmatic inquiry. See id. at 98-99.
As a preliminary matter, we note that the defendant raises his ineffective assistance arguments for the first time on direct appeal instead of in a motion for a new trial. We disfavor this approach because it hobbles our review. See Commonwealth v. Zinser, 446 Mass. 807, 809 n.2, 811 (2006). As a consequence, we will reverse the defendant’s convictions only if the ineffectiveness “appears indisputably on the trial record.” Id. at 811, quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).
a. Medical records. The defendant adheres to a mistaken interpretation of what happened at his trial with regard to the introduction of the victim’s medical records. Although trial counsel admittedly failed to subpoena the victim’s medical records pursuant to G. L. c. 233, §§ 79 and 79G, nothing in the trial record indicates that the judge treated counsel’s failure to comply with these statutes as sacrificing the opportunity to redact the record.
“Counsel’s decisions will not be viewed as constituting ineffective assistance unless they are ‘manifestly unreasonable.’ ” Commonwealth v. Dwyer, 448 Mass. 122, 137 (2006), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978). The defendant contends that his counsel’s decisions were manifestly unreasonable because the medical records included information that was prejudicial to his case, specifically, the SANE nurse’s summary of the victim’s statement that implicated the defendant by name, and the treating physician’s clinical impression of “Sexual Assault.” The defendant relies on Commonwealth v. Dwyer, supra, where we held that counsel was ineffective when he acquiesced to the admission of unredacted medical records that included inadmissible hearsay and statements identifying the defendant as the alleged perpetrator of the sexual abuse of the victim. However, that case is not controlling here.
We begin by noting that the SANE nurse’s summary of the victim’s statement was not prejudicial to the defendant’s case. It was never the defense strategy to deny that the victim had reported being raped by the defendant, nor was it to argue that the victim had been raped by another person. Rather, the defense was that the victim had fabricated the entire incident. Thus, although the medical records included several notes that the victim reported being raped, as well as the SANE nurse’s summary that included references to the defendant, these facts were conceded by the defense from the beginning. This was not an unreasonable strategy, much less a manifestly unreasonable one.
As for the treating physician’s clinical impression of sexual assault, the defendant is correct that this information would likely have been redacted had counsel requested it. See id. Although the prosecutor never directed the jury’s attention to this or any other portion of the medical records, the jury might have interpreted that two-word notation as a diagnosis. Such an interpretation would have been prejudicial. Nevertheless, any prejudice was limited by defense counsel’s extensive use of the rest of the records to question whether the victim had been raped at all. The jury were drawn to the portion of the records that showed almost
b. Failure to object. The defendant next argues that his counsel was ineffective for failing to object to the victim’s testimony, elicited by the prosecutor, that he argues was self-corroborative. He focuses on the following exchange:
The prosecutor: “When you told your mother about what happened, what did you say?”
The victim: “What did I say?”
The prosecutor: “Yes.”
The victim: “I told her exactly what happened.”
The prosecutor: “As a result, the police were called?”
The victim: “Yes.”
The prosecutor: “Did they come to the campground?”
The victim: “Yes.”
The prosecutor: “Did you speak with them?”
The victim: “Yes.”
The prosecutor: “And later on that evening, in fact, did they ask you to go someplace else?”
The victim: “They had me go to the hospital.”
The defendant argues, in effect, that his counsel would have been successful had he objected to this testimony because the victim’s testimony was “essentially the same as permitting [the police] to testify” in violation of the first complaint doctrine.
Whatever self-corroboration the victim’s testimony supplied was consistent with the defense. At trial, defense counsel highlighted that the victim did not contact the police herself, relying on her mother to do so and only after her mother threatened to send her to New Hampshire. On cross-examination, defense counsel attacked the victim’s credibility on these grounds. Similarly, defense counsel elicited testimony from the victim that she did not tell the police that she had been raped orally. Moreover, the defendant’s witness, Deborah Houle, revealed essentially the same facts as the victim did, testifying that she saw the police and an ambulance arrive and that she saw the defendant being arrested.
What emerges from the trial record is a defense strategy based on the theory that the victim told her mother, the police, and hospital staff that she had been raped only as a means to avoid being sent to stay with her father for the remainder of the summer. Any “imprimatur of official belief in the [victim]” caused by her testifying that the police were contacted and that they asked her to go to a hospital was a component of the defense counsel’s core argument: the victim lied to everyone. See Commonwealth v. Stuckich, supra. Objecting to what the defendant now calls self-corroborative testimony would have run counter to this strategy. Defense counsel’s performance was not ineffective.
c. Cumulative ineffectiveness. Finally, the defendant argues that the combination of defense counsel’s decisions regarding the victim’s medical records and testimony gives rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Mazzone, 55 Mass. App. Ct. 345, 352-353 (2002); Commonwealth v. Whitlock, 39 Mass. App. Ct. 514, 517-518 (1995). No such risk emerges from the trial record. See Commonwealth v. Zinser, 446 Mass. 807, 811 (2006).
Conclusion. The defendant’s convictions of assault and battery and rape of a child by force are affirmed. His conviction of
So ordered.
The relevant language of G. L. c. 265, § 22 (a), states:
“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 . . . such sexual intercourse or unnatural sexual intercourse . . . is committed by a joint enterprise . . . shall be punished by imprisonment in the state prison for life or for any term of years.”
In relevant part, G. L. c. 233, § 79, provides:
“Records kept by hospitals . . . may be admitted by the court, in its*55 discretion, as evidence in the courts of the commonwealth so far as such records relate to the treatment and medical history of such cases and the court may, in its discretion, admit copies of such records, if certified by the persons in custody thereof to be true and complete; but nothing therein contained shall be admissible as evidence which has reference to the question of liability” (emphasis added).
In relevant part, G. L. c. 233, § 79G, provides:
“In any proceeding commenced in any court, ... an itemized bill and reports, including hospital medical records, . . . shall be admissible as evidence of . . . the diagnosis of said physician . . . , the prognosis of such physician . . . , the opinion of such physician . . . ; provided, however, that written notice of the intention to offer such bill or report as such evidence, together with a copy thereof, has been given to the opposing party or parties, or to his or their attorneys, by mailing the same by certified mail, return receipt requested, not less than ten days before the introduction of same into evidence, and that an affidavit of such notice and the return receipt is filed with the clerk of the court, agency or commission forthwith after said receipt has been returned” (emphasis added).
The judge stated:
“Technically you should have brought them in pursuant to the statute. As an act of discretion, we can mark a copy, and I am going to let them come in. I think the defense may have a little mistaken belief that they were coming in. ... I don’t want to prejudice the defense just by this sort of technicality . . . .”
This is reflected in the records by a series of checks made by the sexual assault nurse examiner (SANE nurse) on “Form 2 information pertaining to assault” (Form 2). The box for penetration of the mouth by penis was left unchecked. There is also no mention of oral sex in the narrative patient report of incident, prepared by the SANE nurse based on the victim’s description of the sexual assault.
The defense also called a witness, Deborah Houle, who called into question whether the victim had even seen the defendant on the night in question. Houle testified that the victim had spent the evening at Houle’s campsite with some other girls until approximately 2:30 a.m., after which time the victim left with a man named Brandon. Houle testified that she had not seen the victim with the defendant that night.
While this approach has been criticized because it can be unsettling when a jury return inconsistent verdicts for “compound crimes” such as possession of a firearm and armed robbery, the tide of the law flows against this objection. See Muller, The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L. Rev. 771, 778-779, 787-789, 794 (1998). The United States Supreme Court has long condoned such inconsistencies. See United States v. Powell, 469 U.S. 57, 62-69 (1984); Dunn v. United States, 284 U.S. 390, 393 (1932). See also United States v. Crayton, 357 F.3d 560, 565-566 (6th Cir.), cert, denied, 542 U.S. 910 (2004) (reviewing United States Court of Appeals cases that tolerate inconsistent jury verdicts).
As stated in Commonwealth v. Haskins, 128 Mass. 60, 61 (1880):
“By [the] record it appears that there had been the larceny of a cow, and but one larceny of that cow. The defendants were charged in one count of the indictment with such larceny, and in the second count with having received her knowing her to have been thus stolen. It is certain that the defendants could not be guilty upon both counts, because in law the guilty receiver of stolen goods cannot himself be the thief; nor can the thief be guilty of a crime of receiving stolen goods which he himself had stolen.”
Under English law, the crime of riot required at least three participants. Muller, supra at 779, citing Harison v. Errington, 19 Eng. Rep. 1292, 1293 (K.B. 1627).
Such concerns are not present where inconsistent verdicts are rendered at separate trials. See Commonwealth v. Cerveny, 387 Mass. 280, 285 (1982). No inference of confusion or insufficient proof is available in those circumstances.
Commission of rape by “joint enterprise” where the “joint enterprise” is an element of the crime is distinct from general liability as a joint venturer. As we explained in Commonwealth v. Zanetti, 454 Mass. 449, 466-467 (2009), joint venture is not a question of joint guilt, but rather a way of attaching individual liability. It matters only whether a defendant participated in the commission of a crime, either alone or with another. That is, although it is true that a joint venture instruction is only proper when there is evidence that multiple individuals were involved in the crime, that instruction does not change the nature of the underlying offense. We made this clear when we said that convictions should be reviewed to determine “whether the evidence is sufficient to permit a rational juror to conclude beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, with the intent required to commit the crime, rather than examine the sufficiency of the evidence separately as to principal and joint venture liability.” Id. at 468. Thus, a person convicted of murder because he participated as a joint venturer is a murderer, not a murderer by reason of joint venture; a principal and a joint venturer (or an accomplice, aider, or abettor) commit the same crime.
The Commonwealth argues that the fact that Walter Watson was convicted of assault and battery should alter this result because the jury did find that there was a joint enterprise. This is wrong. Preliminarily, this conclusion is not supported by what happened at trial. The jury were instructed on assault and
