Opinion
19-P-1622
05-27-2021
COMMONWEALTH v. John T. JONES, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a Superior Court jury trial, the defendant was convicted of one count of vaginal rape and one count of anal rape, each aggravated by reason of joint enterprise. See G. L. c. 265, § 22 (a ). On appeal, the defendant contends that (1) the judge erred in instructing the jury on the aggravating factor, and (2) the evidence was insufficient to prove that he committed anal rape. We affirm.
The jury acquitted him of one count of aggravated oral rape.
Discussion. 1. Jury instruction. After instructing the jury, the judge asked counsel whether there were any objections. Although counsel raised none, the judge expressed concern that his instruction on the aggravating element of joint venture was misleading. After a sidebar discussion with the attorneys, the judge reinstructed the jury, modifying his instruction to remove language that the judge believed would have allowed the jury to "find [the defendants] guilty if [the defendants] simply committed the rape." The Commonwealth, after the jury had retired for deliberation, questioned the accuracy of the judge's modified instruction. A second discussion ensued, and the parties agreed to the following language:
The statute, G.L. c. 265, § 22 (a ), and the indictments both refer to the aggravating factor as "joint enterprise," however the parties at trial referenced "joint venture." We use the terms interchangeably. See Commonwealth v. Basey, 82 Mass. App. Ct. 278, 282-283 (2012) (rejecting argument that joint enterprise and joint venture require different proof).
The judge initially instructed the jury, in relevant part, that joint venture could be proved by evidence that "the defendant personally committed all of the acts that constitute the crime," or "that the defendant aided or assisted another person in committing the crime."
The judge reinstructed the jury on the element of joint venture only, removing the following two clauses from the original instruction: "the defendant personally committed all of the acts that constitute the crime" and "the defendant committed the crime himself."
The Commonwealth argued that "joint enterprise is ... two or more individuals committing a sexual assault on a person," and that the modified instruction did not so instruct the jury.
"A defendant who [sic ] is a knowing participant in a joint venture to commit a crime provided -- provided the Commonwealth proved the following: One, that the defendant personally committed all of the acts that constitute the crime with the co-defendant and with the shared intent to commit the crime; or, two, that the defendant aided or assisted another person in committing the crime by, A, asking, hiring, or encouraging the other person to commit the crime; or, B, helping to plan the commission of the crime; or, C, agreeing to stand by at or near the scene of the crime to act as a lookout or provide aid or assistance in committing the crime, or in escaping, should such help become necessary."
This instruction was read to the jury, and they were provided with a written copy of the final iteration.
On appeal, the defendant argues that his convictions should be reversed because the judge failed to instruct the jury on the mental state required for the element of joint venture. The defendant claims that he preserved his objection, but the record demonstrates that, to the contrary, the defendant acquiesced to each revision to the jury instruction proposed and delivered by the judge. We therefore review the claimed error for a substantial risk of a miscarriage of justice. See Commonwealth v. Lutskov, 480 Mass. 575, 581 (2018), citing Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
"[A]ggravated rape by reason of joint enterprise is a crime that requires ‘the united act of two or more individuals to constitute an offense in either’ " (citation omitted). Commonwealth v. Medeiros, 456 Mass. 52, 60 (2010). Although "[c]omission of rape by ‘joint enterprise’ where the ‘joint enterprise’ is an element of the crime is distinct from general liability as a joint venturer," id. at 60 n.10, the proof required on the element of joint enterprise is no different from that required to attach individual liability when a defendant is prosecuted as a joint venturer, see Commonwealth v. Basey, 82 Mass. App. Ct. 278, 282-283 (2012). Accordingly, to prove the element of joint enterprise as the aggravating element in a charge of aggravated rape, the jury are instructed that the Commonwealth must prove "that the defendant knowingly participated in the commission of the crime charged, and that the defendant had or shared the required criminal intent." Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009).
Here, reviewing the final version of the jury instructions as a whole, see Commonwealth v. Watson, 487 Mass. 156, 165 (2021), we are satisfied that the jury were adequately instructed on the mental state required to find the element of joint enterprise. Indeed, the instructions essentially tracked those set out in Zanetti. See Zanetti, 454 Mass. at 470-471 (Appendix). Contrary to the defendant's argument, the judge, after explaining the various ways in which a defendant could potentially participate in a joint venture, told the jury that, "[w]hether the defendant personally committed the crime, or aided or assisted others in doing so, the Commonwealth must prove that he had or shared the intent required for that crime." , The judge's instruction was sufficient to convey that the aggravating element of aggravated rape required proof that the defendant shared with the codefendant the intent to commit each count of rape.
Every version delivered to the jury contained this instruction.
The defendant's argument depends on a single line of the joint venture instruction, read in isolation. As we have noted, "[a]n error is not ascertained by scrutinizing bits and pieces of the charge, removed from their appropriate context." Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 9 (2001).
2. Jury question. Somewhat relatedly, the defendant also contends that the judge's answer to a question from the jury was an incorrect statement of law, and that the jury should have been given a supplemental instruction to clarify that "no defendant may be convicted of a joint venture unless at least one other is also guilty of a joint venture." The defendant claims the absence of such a supplemental instruction requires that his convictions be reduced to lesser included offenses.
The jury submitted two questions regarding the evidence of joint venture on the charge of oral rape:
"Suppose Defendant A is charged with [aggravated] rape orally, and we believe that the Commonwealth has proven beyond a reasonable doubt that Defendant A is guilty of all three elements."
"Also, suppose that Defendant B is charged with aggravated rape orally, and we do not believe that the Commonwealth has proven beyond a reasonable doubt that Defendant B is guilty of Element 1 or Element 2, but we do believe that the Commonwealth has proven beyond a reasonable doubt that Defendant B is guilty of Element 3."
"First question. Would the verdict for Defendant A for the charge of aggravated rape orally be guilty or not guilty?"
"Second question. Would the verdict for Defendant B for the charge of aggravated rape orally be guilty or not guilty?"
The judge answered the questions by reiterating his original instruction on reasonable doubt and, as relevant here, instructing the jury that "[w]hatever happens on any other indictment should not and does not affect or control you with respect to another indictment."
"The proper response to a jury question must remain within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly." Commonwealth v. Wood, 469 Mass. 266, 293 (2014), quoting Commonwealth v. Delacruz, 463 Mass. 504, 518 (2012). First, the judge did not abuse his discretion in declining to give the requested supplemental instruction. The jury's question indicated that they were contemplating the relationship between the element of joint venture on each of the two defendants corresponding indictments; the judge's earlier instruction adequately explained that the element of joint venture required "proof that the defendant ... had or shared the intent required to commit the crime with another person." See Commonwealth v. Stokes, 440 Mass. 741, 750 (2004) ("We judge the adequacy of a particular instruction not in isolation but in the context of the entire charge"). Nor does the judge's response to the jury's question compel reduction of either of the defendant's convictions. Although we recognize that the instruction was not technically accurate in the context of this trial -- where two defendants were tried jointly on multiple charges of aggravated rape -- we perceive no prejudice to the defendant. We are satisfied that the jury understood the shared intent element of joint venture, and the verdicts were not legally inconsistent. Cf. Commonwealth v. French, 462 Mass. 41, 45 (2012) (acquittal of one defendant on sole charge of aggravated rape requires acquittal of codefendant on same sole charge). That the jury returned verdicts of not guilty on the charges of aggravated oral rape, despite evidence that the codefendant forced the victim to engage in oral sex, supports this conclusion.
3. Sufficiency of the evidence. The defendant further argues that the judge erred in denying his motion for a required finding of not guilty on the count of anal rape because the victim's testimony did not clearly establish that he had penetrated the victim anally. We disagree.
When reviewing the evidence under the familiar Latimore standard, we consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). With regard to anal penetration, the victim testified that the defendant and the codefendant positioned her body "so that [the defendant] could be in me vaginally and [the codefendant] was in me anally." She then testified that the two men "took turns, so then [the codefendant] would be under me, and [the defendant] would be behind me." The prosecutor asked whether, after the defendant moved from beneath the victim to behind her, "[the men] accomplish[ed]" the same conduct that she had previously described. She answered "Yes." From this testimony, the jury could reasonably infer that the victim was describing the defendant's penetration of her both vaginally and anally. See Commonwealth v. Lao, 443 Mass. 770, 779 (2005) ("Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense" [citation omitted]). At minimum, the victim's testimony was sufficient to permit a jury to find the element of anal penetration beyond a reasonable doubt.
Judgments affirmed.