67 Mass. App. Ct. 266 | Mass. App. Ct. | 2006
If sheer volume of literature be the measure of fascination, then few subjects have been as intriguing for criminal law scholars as the nexus between the doctrine of impossibility and the crime of attempt.
A police undercover sting operation culminated in the indictment of defendant Kerry Vann Bell for attempted rape of a child and solicitation of sexual conduct for a fee, in violation of G. L. c. 274, § 6, and G. L. c. 272, § 53A, respectively. The defendant moved to dismiss the charges, claiming there was insufficient evidence presented to the grand jury. A Superior Court judge denied the defendant’s motion and subsequently reported three questions to this court pursuant to Mass.R.Crim.P. 34, as amended, 442 Mass. 1501 (2004). See generally Commonwealth v. Bankert, ante 118, 120-121 (2006); Smith, Criminal Practice and Procedure §§ 2205, 2212-2214 (2d ed. 1983 & Supp. 2006). The questions reported are (1) “[wjhether the [Superior] Court[] [judge’s] ‘Memorandum of Decision and Order on Defendant’s Motion to Dismiss’ is correct as a matter of law”; (2) “[w]hether one [can] commitQ the crimes of attempted rape of a child and solicitation of sexual conduct for a fee when there is no actual intended victim, because unbeknownst to the perpetrator, he is negotiating with an undercover [police] officer to arrange for sexual intercourse with a child”; and (3) “[w]hether [the] indictment [in this case] which alleges an attempt to commit rape of a child is supported by sufficient evidence [as matter of law] of an ‘overt act’ committed in furtherance thereof [so as to survive a motion to dismiss]?” We answer “yes” to all three questions.
Background. The evidence before the grand jury can be sum
There was some initial difficulty at the meeting point, as the defendant went to the wrong location, but eventually he arrived, approached Cummings’s car, and said, “I found you.” The defendant answered to the name “Ron.” Cummings exited her car and walked with the defendant to the store. After questioning each other on whether either was a police officer or was wearing a wire, the defendant began to complain that Cummings had not brought the child. Eventually, Cummings told the defendant that the child was “over by” a nearby park.
Cummings and the defendant then walked to a black sport utility vehicle (SUV) (which the defendant had driven to the site), where they discussed the transaction in detail. First, the defendant entered the vehicle and moved some items around
Discussion. Because the first reported question can only be answered after we address the second and third questions, we consider the latter queries in sequence. We thus begin with the second question — whether a defendant can be guilty of attempting to rape a child or of soliciting sexual conduct for a fee where, unbeknownst to him, he was negotiating with an undercover police officer to arrange for sexual intercourse with a child, and there was no actual child at risk in the negotiations. The defendant argues that the statutory language of both of these crimes requires the presence of a victim as an element,
The fundamental flaw in the defendant’s argument is that it confuses legal and factual impossibility. See 2 LaFave, Substantive Criminal Law § 11.5(a), at 233-240 (2d ed. 2003). “Legal impossibility as a defense to an attempt offense arises only when the defendant’s objective is to do something that is not a crime.” In re Doe, 855 A.2d 1100, 1106 (D.C. 2004). See United States v. Oviedo, 525 F.2d 881, 883 (5th Cir. 1976) (“Legal impossibility occurs when the actions which the defendant performs or sets in motion, even if fully carried out as he desires, would not constitute a crime”). “Factual impossibility occurs when the objective of the defendant is proscribed by the criminal law but a [physical] circumstance unknown to the [defendant] prevents him from [accomplishing] that [intended] objective.” Ibid. See In re Doe, supra. As famously exemplified, factual impossibility arises when the crime cannot physically be effectuated, such as trying to pick a pocket that proves to be empty. Commonwealth v. McDonald, 5 Cush. 365, 367-368 (1850).
The defendant acknowledges that, in contrast to legal impos
The defendant’s efforts to cast the alleged circumstances in terms of legal impossibility are unavailing. See In re Doe, supra (discussing and rejecting legal impossibility defense as applied to undercover sting operation targeting interstate travel with intent to engage in sexual acts with minor, where law enforcement agent posed as minor). Here, the evidence before the grand jury showed that the defendant arranged a meeting with a person who he thought would provide him access to a child for the purpose of sexual favors. He negotiated the price and the terms of the rendezvous. He was in his car about to travel to the agreed location to commit the rape when he was arrested. Had the police not arrested him, the defendant would have traveled to the nearby park only to discover that his expected, imminent victim was not present. That he was arrested as he was about to travel to the nearby park, rather than at the park itself, is of no
Because the defendant intended to commit illegal acts, took actions to carry out that intent, and was only precluded because the illegal acts could not physically be accomplished, there was factual impossibility. The nonexistence of the child in this case is no less an impediment to the application of the criminal sanction than was the absence of a wallet for a pickpocket, Commonwealth v. McDonald, 5 Cush. at 367-368; the absence of a fetus in an illegal abortion, Commonwealth v. Taylor, 132 Mass. 261, 262 (1882); or the failure of an attempted murderer to put enough poison in a victim’s beverage, Commonwealth v. Kennedy, supra at 21-22. See In re Doe, 855 A.2d at 1106 (where defendant was convicted of interstate travel with intent to engage in sexual acts with minor, based on undercover sting operation where law enforcement officer posed as minor, court rejected defendant’s characterization of “legal impossibility”
The third question reported was whether the indictment alleging an attempt to commit rape of a child in this case is supported, as matter of law, by sufficient evidence of an overt act to survive a motion to dismiss. Relying on Commonwealth v. McCarthy, 385 Mass. 160 (1982), the defendant argued that the evidence presented to the grand jury was insufficient to establish an overt act to support probable cause that he had attempted to rape a child.
The modem Massachusetts doctrine of attempt traces its roots back to the principles set forth by Chief Justice Holmes in Commonwealth v. Kennedy, 170 Mass. 18 (1887), and Commonwealth v. Peaslee, 177 Mass. 267 (1901). See Commonwealth v. Hamel, 52 Mass. App. Ct. 250, 257-258 (2001). “The law must be careful not to overplay the role of intention in such an inchoate crime as attempt, lest the result be ... to punish the mere possession of a sinful mind. The consequence of Holmes’s line of reasoning . . . was that [it is] in the duality of intention and overt act that ... the heft of the crime of attempts [resides] . . . .” Id. at 257. A court’s focus should thus be on “the distance or gap between the defendant’s actions and the (unachieved) goal of the consummated crime.” Id. at 258.
The defendant cites Commonwealth v. Ortiz, supra, to support his contention that because he might have had a change of heart while traveling to the meeting, the evidence of his conduct was too remote to constitute an overt act. Each case, however, must be decided on its own facts. Here, there was substantial evidence alleged before the grand jury that the defendant had a specific plan to which he was apparently committed and was in the process of carrying out when he was arrested. See Commonwealth v. Peaslee, 177 Mass. at 273-274 (defendant “must be shown to have the present intent to accomplish the crime
All in all, given the nature of the crime alleged, the thoroughness of the defendant’s planning and his conduct as alleged, and the little that remained for him to do to complete the crime, we conclude that the gap here between what was done and what remained to be done was small enough to warrant probable cause for a charge of attempt. Accordingly, we answer the third reported question in the affirmative. Based upon our affirmative answers to the second and third reported questions, we also answer the first reported question — whether the judge’s order was correct as a matter of law — in the affirmative.
In short, for the foregoing reasons, we answer “yes” to all three reported questions, and remand the case to the Superior Court for further proceedings consistent with these responses to the reported questions.
So ordered.
See 2 LaFave, Substantive Criminal Law § 11.5(a), at 230 (2d ed. 2003).
See Packer, The Limits of the Criminal Sanction 3, 100-101 (1968).
Undercover sting operations are recognized legitimate investigative techniques, Commonwealth v. Garcia, 421 Mass. 686, 692 (1996), and they play an important role in the investigation and prosecution of alleged child sexual abusers. See, e.g., United States Department of Justice, Federal Bureau of Investigation, Investigating Crimes Against Children (2006); United States Department of Justice, Office for Victims of Crime and Office of Juvenile Justice and Delinquency Programs, Child Sexual Exploitation: Improving Investigations and Protecting Victims — A Blueprint for Action 17 (1995). Sexual exploitation of children is a matter of grave public concern. See, e.g., Cooper, Estes, Giardino, Kellogg, & Vieth, Medical, Legal and Social Science Aspects of Child Sexual Exploitation: A Comprehensive Review of Pornography, Prostitution and Internet Crimes (2005); United States Department of Justice, Office for Victims of Crime and Office of Juvenile Justice and Delinquency Programs, Child Sexual Exploitation: Improving Investiga-
The questions posed for review by the judge here are thus “questions of importance to the general public” within the restrictive ambit of Mass.R. Crim.P. 34. Commonwealth v. Bankert, supra at 120, quoting from Smith, Criminal Practice and Procedure § 2213, at 388. We note that neither the defendant nor the Commonwealth has objected to the judge’s utilization of the reporting mechanism.
While the defendant points to the general rape statute, he was actually charged with attempted rape of a child. The child rape statutes, G. L. c. 265, §§ 22A and 23, more specifically criminalize sexual intercourse or unnatural sexual intercourse with a child under sixteen. The greater specificity of those statutes is of no consequence to the defendant’s argument or our resolution of the questions posed.
In Commonwealth v. McDonald, supra at 367, the defendant contended
Certainly, the involvement of an actual child should not be required to hold a defendant liable for attempted rape of a child. See generally State v. Fowler, 3 S.W.3d 910, 912-913 (Tenn. 1999).
Indeed, regarding the sexual conduct for a fee offense, the defendant completed the crime when he made an agreement to pay a fee for sexual services. As G. L. c. 272, § 53A, makes plain, the crime includes the offer or agreement to engage as well as engaging in the sexual conduct. The defendant bargained and agreed with the undercover officer to pay for sexual conduct with a natural person. Simply because it turned out that the person about whom he agreed did not exist, the defendant cannot now suggest that he was not offering to pay for sexual acts with a natural person. We note, moreover, that while the offenses of solicitation and attempt to solicit differ, see Commonwealth v. Foley, 24 Mass. App. Ct. 114, 115-116 (1987), in any event, factual impossibility would not provide a defense to either offense.
Regarding Commonwealth v. McCarthy, supra, the Supreme Judicial Court has explained:
“Although it is ‘the well established principle that the adequacy of the evidence presented to the grand jury cannot be tested by a motion 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).”
Commonwealth v. Caracciola, 409 Mass. 648, 650 (1991).
The third reported question presents a matter of great importance for pending, ongoing undercover sting operations involving child rape cases, as it concerns the probable cause which must be established as matter of law by such investigative operations. See note 3, supra. The broad importance of that question, and interests of judicial economy and efficiency in light of our affirmative answer to question two, all combine to present a rare confluence of circumstances for the exceptional interlocutory review provided under Mass. R.Crim.P. 34. See Commonwealth v. Caracciola, supra.
The doctrine of attempt in this Commonwealth is to be distinguished from the position adopted by the Model Penal Code. See Commonwealth v. Hamel, supra at 258-259. The Code focuses on what the offender has done, not what he has left to do. It looks to whether the defendant took “a ‘substantial step in a course of conduct planned to culminate in [the] commission of the crime,’ which step was ‘strongly corroborative of the actor’s criminal purpose.’ ” Id. at 258, quoting from Model Penal Code and Commentaries § 5.01(l)(c) & (2), at 296 (1985). Legislation reflecting this approach, which broadens the base of criminal attempt and would make criminal convictions easier to secure, was proposed but not enacted. See Commonwealth v. Hamel, supra at 259. See also Commonwealth v. Ortiz, 408 Mass. 463, 472 (1990).