Opinion
No. 11–P–1878.
2012-10-3
COMMONWEALTH v. Michael BRESNAHAN.
By the Court (KAFKER, KATZMANN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a Superior Court jury of six counts of aggravated rape; home invasion; aggravated kidnapping; armed assault in a dwelling; armed burglary; two counts of indecent assault and battery on an elderly person; four counts of assault and battery on an elderly person; assault and battery on an elderly person causing bodily injury; and intimidation of a witness. He now appeals. We affirm.
1. The defendant claims that the indictments charging aggravated rape should be dismissed, contending that “[a]ggravated [r]ape was a lesser-included offense of [a]ggravated [k]idnapping because the former was an element of the crime of aggravating kidnapping.” This claim is not persuasive. To prove aggravated rape, the Commonwealth must show that the defendant engaged in sexual intercourse, either natural or unnatural, with a person, compelled such person to submit by force or threat of bodily injury and against her will, and that such sexual intercourse was committed during the commission or attempted commission of one (or more) of certain offenses specified by law. See G.L. c. 265, § 22( a ); Commonwealth v. Wilcox, 72 Mass.App.Ct. 344, 348 (2008) ( Wilcox ). Here, the jury were instructed that the Commonwealth alleged that the rape was committed during the commission or attempted commission of the offenses of kidnapping “and/or” armed burglary. The jury convicted the defendant on both aggravating factors. By contrast, aggravated kidnapping in this case required proof that the defendant, without legal authority, “forcibly or secretly confine[d] or imprison[ed] another person within this commonwealth against [her] will.” G.L. c. 265, § 26. The Commonwealth must also have proven that, during the commission of the kidnapping, the defendant “sexually assault[ed]” such person. Ibid., as amended by St.1998, c. 180, § 63. Here, the judge instructed that “the term ‘sexual assault’ shall mean the commission of any act set forth in the indictments alleging aggravated rape, which I have defined earlier.”
Under the appropriate elements-based analysis, aggravated rape is not a lesser included offense of aggravated kidnapping because here aggravated rape involved proof of an additional element, armed burglary. The Commonwealth proved and the jury found beyond a reasonable doubt that the defendant raped the victim while committing armed burglary. Thus, contrary to the defendant's claim, the aggravated rape convictions were not “wholly included within” the aggravated kidnapping conviction. Because “each offense requires proof of an additional element that the other does not, ‘neither crime is a lesser-included offense of the other, and convictions on both are deemed to have been authorized by the Legislature and hence not [duplicative].’ “ Commonwealth v. Vick, 454 Mass. 418, 431 (2009), quoting from Commonwealth v. Jones, 382 Mass. 387, 393 (1981). Moreover, it is well established that aggravated rape and kidnapping are not duplicative so long as the kidnapping was not the only aggravating factor that was alleged and upon which the jury returned a conviction. See Wilcox, 72 Mass.App.Ct. at 347. See also Commonwealth v. Dykens, 438 Mass. 827, 840–841 (2003). Contrast Commonwealth v. Petrillo, 50 Mass.App.Ct. 104, 110–111 (2000); Commonwealth v. Donovan, 58 Mass.App.Ct. 631, 632 n. 1 (2003).
As we have noted in determining that aggravated rape and kidnapping are not duplicative, “[e]ach of these crimes requires an element that the other does not: kidnapping, unlike aggravated rape, requires confinement, and aggravated rape, unlike kidnapping, requires sexual intercourse.” Wilcox, 72 Mass.App.Ct. at 348. Furthermore, particularly where there are additional aggravating factors for the aggravated rape conviction independent of the kidnapping, the legislative scheme reflects a determination that “the kidnapping and rape convictions should be considered separately and should not be merged.” Id. at 349. Thus, it is clear that the Legislature intended that aggravated rape and aggravated kidnapping should be treated as separate offenses here. See id. at 348–349. Because each crime contains an element that the other does not, neither is a lesser included offense or is duplicative of the other, and the defendant's claim fails.
This case is factually and legally distinguishable from Commonwealth v. Hrycenko, 417 Mass. 309, 316–317 (1994), cited by the defendant. The defendant here was indicted on six counts of aggravated rape and was convicted on all counts. Unlike in Hrycenko, there is no risk that he would be sentenced or retried on charges of which he was acquitted.
2. In the alternative, the defendant asserts, without citation to legal authority, that the aggravated kidnapping indictment should be dismissed as a lesser included offense of aggravated rape. Applying the principles set forth in the analysis above, we conclude that this contention fails.
3. The defendant contends that his statements to the arresting Oregon police officers were improperly admitted in violation of his Miranda rights. We disagree. “Miranda warnings are only necessary where one is the subject of ‘custody and official interrogation.’ “ Commonwealth v. Larkin, 429 Mass. 426, 432 (1999), quoting from Illinois v. Perkins, 496 U.S. 292, 297 (1990). Here, when Officer Jones ordered the defendant to drop to the ground or he would be shot, the defendant volunteered, “Just shoot me, just shoot me.” This spontaneous statement was not made in response to interrogation and, as such, did not implicate Miranda warnings. The judge also correctly determined that the defendant's statement to Corporal Gagner, that he was planning on going to Alaska so that police would not find him, was not the result of interrogation and was admissible. The judge found that the defendant initiated the conversation, and we defer to his determination. See Commonwealth v. Novo, 442 Mass. 262, 266 (2004). Moreover, contrary to the defendant's contention, Officer Jones testified that he “specifically remember[ed]” the defendant being advised of his Miranda rights. Again, we defer to the judge's determination. Commonwealth v. Magee, 423 Mass. 381, 384 (1996). Finally, even if the judge erred in admitting the two statements, the errors were harmless beyond a reasonable doubt. The evidence against the defendant, apart from the statements at issue, was overwhelming. Here, the defendant testified, asserting a defense of consent. The jury had the opportunity to assess his credibility, and found against him. The deoxyribonucleic acid (DNA) evidence, the fingerprint evidence, the victim's testimony corroborated by police observations of the crime scene, and evidence of the defendant's flight upon learning of the charges ensured that there is no reasonable probability the statements might have contributed to the defendant's convictions. See Commonwealth v. Perez, 411 Mass. 249, 260–261 (1991).
Judgments affirmed.