42 Mass. App. Ct. 14 | Mass. App. Ct. | 1997
The defendant was charged on six identical
1. The instruction regarding the lesser included offense.
The defendant argues that the judge erred when he ruled that indecent assault and battery on a child under fourteen (§ 13B) is included within the offense of forcible rape of a child under sixteen (§ 22A), and that the judgment must be reversed because the defendant was convicted of a crime with which he was not charged.
It is true that a victim under the age of sixteen is not nec
The underlying issue in this controversy is whether it can be said that the defendant, having been convicted of a crime with which he was not charged, received adequate notice of the risk of a conviction of the lesser crime. See Commonwealth v. Grasso, 375 Mass. 138, 139 (1978) (“[A] crime must be proved as charged and must be charged as proved”). The answer is “yes” if the question is whether all the elements of the lesser offense are included in the greater offense. But if the question is as put by the defendant — whether the greater crime includes all the elements of the lesser crime — the answer is that the supposed lesser crime may not be available, as this case illustrates.
The analysis urged by the defendant is both counter-intuitive and inconsistent with the policy favoring the doctrine of lesser included offenses — a policy that stretches back to the beginning of our jurisprudence. See Commonwealth v. Macomber, 3 Mass. 223 (1807). As comment 5 to § 1.07 of the Model Penal Code (1985) points out, the doctrine of a lesser included offense serves a public purpose: it “allows the jury ... to convict of the offense established by the evidence, rather than forcing it to choose between convicting the defendant of an offense not fully established by the evidence or acquitting, even though the defendant is clearly guilty of some offense.” See also Commonwealth v. Pizzotti, 27 Mass. App. Ct. 376, 385 (1989) (“A judge need not fall in with a defendant’s desire to gamble on the jury’s acquitting him of the larger crime if that crime were put to them without the other choice”).
This formulation of the doctrine as we have stated it was made abundantly clear in Commonwealth v. Rodriguez, 11 Mass. App. Ct. 379, 380 (1981) (“It has long been held that lesser included offenses are those necessarily included in the offense as charged”
Further, having acquiesced in the lesser included instruction, the defendant cannot now claim to have been prejudiced by that instruction. Compare Commonwealth v. Thayer, 418 Mass. 130, 134 (1994) (defendant cannot claim to be prejudiced by a lesser included instruction since he relied on defense that no abuse occurred). We note also that while the indictments did not name the complainants, or state their ages to be under fourteen, discovery pleadings tied by the defendant, who was the cousin of one of the complainants and a family friend of the other, firmly established the undisputed fact of the defendant’s knowledge of the identity of the
We hold, therefore, that on the facts in this case (it being undisputed before trial that the two complainants were under the age of fourteen), indecent assault and batteiy was a lesser included offense of forcible rape.
2. The judge’s refusal to allow a voir dire. On the first day of the trial, the defendant moved for a voir dire of one of the child complainants (whom we shall call Mary), concerning an alleged sexual assault upon Mary by her father.
The judge ruled that “the distance between the evidence that in fact the mother did make these charges and that these charges reached the ears of this child, that distance is just too great to permit a very prejudicial question to be put to this child on that. You’ve got to have more foundation.”
There was no error. The defendant had failed to put down any reasonable foundation of prior similar sexual abuse, see Commonwealth v. Ruffen, 399 Mass. 811, 815-816 (1987), and thus he fails to pass the threshold of “reasonable suspicion and a good faith basis for the inquiry” referred to in that opinion.
Without directing Mary’s attention to her earlier testimony to refresh her recollection, defense counsel sought instead to refresh her memory by showing her the report of the social worker. The prosecutor objected, and the court ruled as follows: “I realize that there is a fairly wide variety of things you can ask to refresh your recollection from, but I think that goes a little bit too far with a child this age” (emphasis added).
There was no error. Counsel had successfully impeached Mary by her inconsistent answers. Moreover, the judge could reasonably conclude — as he evidently did — that a child of merely nine years would not likely understand that counsel was only showing her the report to “refresh her recollection” and not to gain her admission that the report was true. In these circumstances the defendant’s right of cross-examination was “not impermissibly restricted.” Commonwealth v. Clarke, 418 Mass. 207, 212 (1994).
Judgments affirmed.
By agreement of counsel and the judge, the indictments were particularized before going to the jury.
A seventh indictment charged indecent assault and battery on an unnamed child under fourteen. See G. L. c. 265, § 13B. The jury returned a verdict of not guilty on this indictment.
This instruction was given on five of the indictments. On the sixth indictment the judge allowed the defendant’s motion for a required finding of not guilty on so much of it as alleged “rape or statutory rape,” and sent the case to the jury under § 13B. The jury returned a verdict of guilty on this indictment.
At the charge conference preceding the judge’s initial charge to the jury, the judge said that he would include an instruction on' the lesser included offense of indecent assault and battery because the affirmative testimony of penetration was only “slight.” The defendant then withdrew his previous objection to an instruction on the lesser included offense.
The court added, to the same effect, “By definition an offense which requires proof of an element different from, and in addition to, those
The Supreme Judicial Court has, on other occasions, used different expressions, including that proposed by the defendant, see, e.g., Commonwealth v. Franks, 365 Mass. 74, 78 (1974) but, to our knowledge, it has never done so in a context where the difference mattered, as in the case before us.
We are informed by defendant’s counsel that the indictment in Cobb, like the indictment in this case, states that the alleged victim was “under sixteen years of age.”
See, e.g., the defendant’s motion in limine to exclude certain arguments, naming both complainants; motion for hearing on competency of child witness to testify, naming both complainants and alleging both complainants to be “three years old [sic] at the time of the events alleged" in these indictments”; motion in limine to exclude certain prejudicial references, naming the complainants; motion in limine to allow prior bad acts of one of the complainants; motion in limine to admit evidence of another sexual assault naming one of the complainants; motion in limine to admit evidence of another sexual assault, naming the other complainant; motion for the discovery of interviews with the complainants.
The defendant makes no claim that he was deprived of procedural due process nor, based on the foregoing documents, was such a claim available to him.
A similar motion regarding the second child complainant was allowed by agreement.