Opinion
13-P-589
11-10-2014
COMMONWEALTH v. WERNER DELACRUZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions of assault with intent to rape and assault and battery, alleging that the trial judge committed two errors in his charge to the jury and that there was insufficient evidence of a specific intent to rape. We affirm.
Background. The jury could have found the following facts: the victim spent the evening of September 4, 2009, drinking and dancing with her two friends at various bars in Lawrence. One of her friends, Annay Garcia, danced with the defendant at one of the bars that they visited. The victim and her friends then went to Garcia's apartment, where the victim passed out in Garcia's bed. The victim was fully clothed at the time. Garcia and the other friend left to continue drinking at another house. While they were gone, the victim awoke naked, with the defendant (who was also naked) on top of her attempting to have sex with her. The victim started pushing the defendant in an attempt to get him off of her, and he asked her to perform oral sex on him. She grabbed his penis and tried to force him off of her. The defendant got off the victim and struck her in the face with an open hand. The defendant dressed and left. When Garcia and the other friend returned to Garcia's apartment around 6 A.M., they saw the defendant outside of the apartment building wearing different clothing than he was wearing the night before at the club. The victim heard her friends return and told them that she had been raped.
The defense at trial was misidentification and inadequate police investigation. Detective Carlos Vieira testified that he collected bedding, a comforter, and a towel from Garcia's bedroom in the course of his investigation. On cross-examination, Detective Vieira was asked about his decisions: to not collect certain evidence from the bedroom; to not recover fingerprints; to not bring a criminalist to the crime scene; to not look at the defendant's phone despite being authorized to do so; to not check the victim's friends' phones; to not interview other men who may have been with the victim the preceding evening; and to not check text messages on the phones of the victim, the defendant, and the victim's two friends. In the course of Detective Vieira's cross-examination, the judge advised the jury that:
"All these questions relate to the actions taken by the police in investigating this matter. As I will instruct you at the end of the trial, ladies and gentlemen, you can take into account the accuracy of the police investigation, because it may or it may not indicate that it hasn't been proven to you beyond a reasonable doubt. But all these matters relate to the adequacy of the police investigation.
"Now, remember, ladies and gentlemen, this is not a trial about the adequacy of the police investigation. It's not a referendum on that. But it is relevant to the adequacy of the police investigation if it -- inasmuch as to whether or not it's been proven beyond a reasonable doubt or not. But, of course, you could have a perfect police investigation and not prove a case beyond a reasonable doubt, or you could have the absolutely inept police investigation and still prove the case beyond a reasonable doubt.
"But that's why these questions are being asked. It's only as to the adequacy of the police investigation. So to do that, they can ask things, well, you heard about this, you heard about that. So in response to that, did you do this or did you do that. But what you hear is just what he hears. It's not the truth of the matter of what he hears. Am I sort of being clear on that?"
It was established at trial that deoxyribonucleic acid (DNA) evidence from the sheets on Garcia's bed did not match the defendant. The DNA was not sent for further testing in order to identify the donor. Testing did establish, however, that the defendant's DNA matched samples taken from marks on the victim's breasts. Defense counsel elicited testimony on cross-examination of the DNA witness that the swab taken from the victim's breasts contained the DNA of at least three people, and that DNA can be exchanged through secondary transfer.
The judge denied the defendant's motion for required findings of not guilty on all three charges at the close of the Commonwealth's case. The defendant filed a written request for an instruction pursuant to Commonwealth v. Bowden, 379 Mass. 472 (1980). The judge declined to instruct the jury that they may infer that tests not performed by the police, "if they ha[d] been properly conducted, would have resulted in evidence favorable to the defendant." The judge did not see a Bowden issue because the police in this case did perform tests, which produced results favorable to the defendant. The judge agreed to "give the instruction that questioning and argument about the adequacy of the police investigation is perfectly appropriate, because you can consider the adequacy of the police investigation in determining whether the Commonwealth has proven [the] defendant guilty beyond a reasonable doubt." The judge noted that defense counsel could, "of course, argue it to your heart's contentment for the jury."
In Bowden, the Supreme Judicial Court held that it was improper to remove from the jury evidence "that certain tests were not conducted or certain police procedures [were] not followed[,]" as such evidence "could raise a reasonable doubt as to the defendant's guilt in the minds of the jurors." Id. at 486.
In her closing, defense counsel argued that the police's failure to investigate the crime properly, along with the victim's mistaken identification, established reasonable doubt. With respect to identification, the judge instructed the jury that:
"In addition, in any case, you may consider the possibility of an identification which is honestly made but is mistaken. And thus, you may consider whether the witness had the capacity and the opportunity to make a reliable observation on the matter covered by their testimony."
With regard to the police investigation, the judge instructed the jury that:
"This type of questioning and argument is perfectly appropriate because you can consider the adequacy of the police investigation in determining whether the Commonwealth has proven the defendant guilty beyond a reasonable doubt. Remember, however, this trial is not a referendum on how the police performed their job. This is the real world, and the police are not held to a standard of a perfect investigation. After all, sometimes the most thorough investigation will not produce evidence beyond a reasonable doubt. And sometimes the most limited or inept investigation will produce evidence beyond a reasonable doubt."
Discussion. Jury instruction. The defendant first argues that the judge impermissibly invaded the province of the jury by instructing them to disregard his Bowden defense.
"Pursuant to a Bowden defense, a defendant may introduce evidence regarding the police investigation in order to create an inference 'that the evidence at trial may be inadequate or unreliable because the police failed to conduct the scientific tests or to pursue leads that a reasonable police investigation would have conducted or investigated, and these tests or investigation may have led to significant evidence of the defendant's guilt or innocence.'"Commonwealth v. Wood, 469 Mass. 266, 277 (2014), quoting from Commonwealth v. Silva-Santiago, 453 Mass. 782, 801 (2009). This defense is permissible because "[a] jury may find a reasonable doubt if they conclude that the investigation was careless, incomplete, or so focused on the defendant that it ignored leads that may have suggested other culprits." Silva-Santiago, supra.
The judge in this case did not preclude the defendant from introducing any evidence pursuant to a Bowden defense. Nor did he advise the jury to disregard the defense. Contrast Bowden, supra at 485 ("The judge instructed the jury that the nonexistence of certain scientific tests and other evidence was not to be considered in reaching a judgment"). The judge twice instructed the jury that the they could "consider the adequacy of the police investigation in determining whether the Commonwealth has proven the defendant guilty beyond a reasonable doubt." The judge's further instruction, that jurors must "[r]emember, however, [that] this trial is not a referendum on how the police performed their job," merely clarified the purpose for which the jury could consider such evidence.
The judge's comments in this case were unlike those we said "should not have been made" in Commonwealth v. Wood, 37 Mass. App. Ct. 917, 919 (1994). There, the judge instructed the jury that "the effectiveness of the Peabody police department is not at issue." Id. at 918-919. Here, the judge twice instructed the jury that they could consider the police department's effectiveness, but only insofar as it related to the Commonwealth's burden of proof. His statement regarding a "referendum," though better left unsaid, did not remove the sufficiency of the police investigation from the jury's consideration. Rather, it focused the jury's attention on their duty to decide whether or not the Commonwealth had met its burden of proving the defendant's guilt beyond a reasonable doubt. "Bowden merely prohibit[s] judges from instructing jurors that no inference could be drawn from a failure to perform tests," Commonwealth v. Phong Thu Ly, 19 Mass. App. Ct. 901, 902 (1984), which was not the instruction given in this case. "[T]he defendant was free to, and did, mount a vigorous defense that focused on the failure of the police to investigate evidence that might have led them to suspect a different person[,]" Commonwealth v. Perez, 460 Mass. 683, 692 (2011), and the judge's instructions advised the jury of the purposes for which they could consider any inferences they drew regarding the police investigation. The judge had discretion not to give the instruction requested by the defendant, see ibid., and cases cited. Furthermore, "the phraseology, method and extent of the charge [were] matters within [the judge's] discretion." Commonwealth v. Roberts, 378 Mass. 116, 130 (1979). We see no abuse thereof.
The defendant next argues error in the judge's failure to give an "honest but mistaken" instruction. This argument lacks merit, as the judge did give the requested instruction. While the judge may not have used the exact wording requested by the defendant, his instruction "was a correct statement of law to which [the defendant] was entitled." Commonwealth v. Meas, 467 Mass. 434, 453 (2014).
Motion for a required finding. Finally, the defendant argues that the judge erroneously denied his motion for a required finding of not guilty on the charge of assault with intent to rape because there was insufficient evidence of his specific intent to rape the victim. "We review the question of the sufficiency of the evidence under the familiar Latimore standard, Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979), viewing the evidence in the light most favorable to the Commonwealth." Commonwealth v. Humphries, 76 Mass. App. Ct. 702, 704 (2010). "[I]ntent to rape may be inferred from various facts viewed in context of the circumstances, including a struggle between the assailant and the victim, the grabbing or tearing of garments, the absence of any other motive for the defendant's actions, the assailant's acts of placing the victim in a compromising position, and the location of the assault being a secluded area." Commonwealth v. Zemtsov, 443 Mass. 36, 41 (2004). The evidence in this case, taken in the light most favorable to the Commonwealth, was that the victim awoke naked with the naked defendant on top of her. No one else was in the apartment, and the defendant was attempting to penetrate the victim's vagina with his penis. The victim was struggling to push the defendant off of her when he asked her for oral sex, and he told her to stop crying and slapped her when she refused. "From this, the jury could infer [the defendant's] intent to have intercourse with her." Id. at 42. "The inferences that jurors may draw need not be inescapable; it is sufficient if they are reasonable in the sense of being rationally derived from the evidence." Commonwealth v. Ormonde, 55 Mass. App. Ct. 231, 234 (2002). Based upon the circumstantial evidence in this case, the inference that the defendant intended to rape the victim "was not only reasonable, it verges on the inescapable." Ibid. Accordingly, the judge did not err in denying the motion.
Judgments affirmed.
By the Court (Fecteau, Hanlon & Carhart, JJ.),
Clerk Entered: November 10, 2014.