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Commonwealth v. Kirwin K.

Appeals Court of Massachusetts.
Oct 1, 2013
84 Mass. App. Ct. 1113 (Mass. App. Ct. 2013)

Opinion

No. 12–P–979.

2013-10-1

COMMONWEALTH v. KIRWIN K., a juvenile.

G.L. c. 119, § 54, inserted by St.1996, c. 200, § 2. The juvenile's second argument is that there was insufficient evidence to prove a threat or infliction of bodily harm in connection with the first sexual assault; for this reason, in his view, he should have been adjudicated delinquent, rather than found guilty of being a youthful offender on that charge.


By the Court (GREEN, HANLON & AGNES, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The juvenile was indicted as a youthful offender on three charges of rape of a child by force, G.L. c. 265, § 22A; three charges of assault and battery by means of a dangerous weapon (a belt, a wire, and a slipper, respectively), G.L. c. 256, § 15A( b ); and one charge of assault and battery, G.L. c. 265, § 13A. After a bench trial, on each of the three rape charges, the judge found the juvenile guilty of the lesser included offense of indecent assault and battery on a child under fourteen years of age. He found the juvenile guilty on one of the three assault and battery by means of a dangerous weapon charges, the charge alleging assault with a belt, and acquitted him of the remaining two.

He also found there was sufficient evidence of a “threat or infliction of serious bodily harm as to all three [sexual assault] indictments” and therefore designated the proceeding a youthful offender case. The juvenile argues two issues on appeal. First, he contends that the prosecutor improperly asked a defense witness to comment on the truthfulness of other witnesses, and second, he maintains there was insufficient evidence to prove that he was a youthful offender on the first count of indecent assault and battery.

The disposition on the assault and battery charge is not clear from the record. However, that charge is not relevant to this appeal.

We affirm.

The juvenile concedes that there was sufficient evidence to support a youthful offender adjudication on the remaining two indecent assault and battery charges.

Background. At the time the assaults were committed, the juvenile was fourteen years old; the victim was seven. The juvenile and the victim are not biological relatives; however, the juvenile's mother dated and had a child with the victim's grandfather. The victim lived with the juvenile and his mother, while her own mother lived elsewhere. The juvenile's mother worked outside of the home and would often leave the juvenile and the victim home alone together; the juvenile was responsible for babysitting the victim and the juvenile's one year old stepsister. When the victim refused to do as the juvenile told her, he would “get a belt and hit [her] with it,” “forc[ing]” her to do as he said, yelling at her, and threatening to “hit [her] every time [she] didn't do it.”

The first incident took place on “a Saturday or the weekend” while the juvenile's mother was at work. The victim was watching television with the juvenile's baby sister while the juvenile was sleeping. When the juvenile awoke and entered the room, he pointed at his “private spot,” and told the victim to come over to him on the couch. When she refused, the juvenile yelled at her, then went to her, picked her up, and carried her back to the couch. He put her on her back and pulled her pants down; she told him to stop while she tried to pull them back up. She tried to get up from the couch, but he pushed her back down. She could not pull her pants up because the juvenile “had so much strength and then it was too hard” to pull up her pants. The juvenile pulled down his boxers while the victim's pants were pulled to above her knees; he then “gave up and then he just said we'll do it next time.”

The second incident was similar, except that, during this incident the juvenile hit the victim “with a belt ten times” on her arms and legs. The victim “kept kicking and kicking and tried yelling” but could not get up from the couch because the juvenile “kept holding [her] down and [she] couldn't move.” The juvenile pulled the victim's pants and underwear down and “[t]hat's when he tried putting his private on [the victim's] front area ... of her private.” Next “he tried putting his private in,” “but it never went in.” Then “he stopped, ... pulled his boxers back up and ... [the victim] kicked him to get up and so he just got up and went in his room.” He threatened her, telling her that if she told anyone what had happened she would be in “big trouble”; he showed her how hard he would hit her “so [she] didn't want that to happen.”

The third incident charged occurred when the juvenile forced the victim to touch his “private spot” with her hand. She testified that this happened “[s]ometimes every day” and that, if she refused, he would “get a wire or a belt” to hit her with. After she was forced to touch him, the victim saw “something white in his hands.” She could not specify how many incidents of sexual assault occurred, but “just [knew it was] like a lot of days” and the same thing occurred every time.

Eventually, the victim told the juvenile's mother what had happened. The juvenile's mother confronted the juvenile, but he denied it. The victim was “too scared” to tell her own mother but knew that the juvenile's mother would tell her; she “didn't want to tell [her] mom because [she] didn't want to leave [the juvenile's mother's apartment].” At trial, the juvenile's mother testified that the victim never told her that the juvenile was sexually assaulting her; she heard about the accusations only through the victim's mother.

The victim's mother testified that she would occasionally sleep at the apartment where the victim lived. She said that the victim never told her what was happening; the victim only complained that the juvenile was hitting her. She noticed on one occasion that the victim had a “bloody eye” that the victim said was caused by the juvenile; otherwise, she observed the juvenile and the victim “play like a brother and—like a brother and a sister would play.” The victim's mother also testified that one night while she was sleeping in the apartment, the juvenile asked her if he could “go down [on her] private.” She “freaked out” and immediately told the juvenile's mother, who started crying. The victim and her mother left the juvenile's apartment that night and moved to a shelter in Marshfield.

Detective Erin Cummings testified that she went to the juvenile's home to locate the victim and leave her card, but the juvenile and his mother were home at the time.

Cummings told the juvenile's mother why she was there; the juvenile's mother “acknowledged that she had already known why [the police] were coming to the home.” The juvenile and his mother were both advised of their rights and the juvenile's mother gave Detective Cummings permission to speak with the juvenile. During the interview, the juvenile told Cummings that the victim had been propositioning him; he said that, when he threatened to tell his mother what she was doing, the victim went to his mother first to say that the juvenile had assaulted her. The juvenile then stated that he and the victim “had sex on several occasions” starting at the “beginning of the school year” and occurring “a couple times a week”; he stated that he and the victim had “vaginal sex” in the living room and bedroom.

Because the juvenile and his mother did not speak English well, Cummings called dispatch to request the services of an interpreter; Officer Nunes arrived at the juvenile's home and proceeded to translate the conversation between Cummings and the juvenile's mother, and later the juvenile.

The juvenile's mother testified for the juvenile and, during cross-examination, said that the victim “was not telling the truth [at trial] because [she] asked [the victim on the day she was crying on the porch if the juvenile had ever touched her and] she said no.” The juvenile's mother also testified that the victim's mother was “not telling the truth. She never told the [juvenile's mother] about going down there.” When asked if Cummings's testimony about the juvenile admitting to having sex with the victim was untruthful, the juvenile's mother replied that the juvenile “didn't say that. [He] only said that [the victim is] the one who c[a]me to bother him, but he never touched her. Never messed with her.”

Discussion. Cross-examination of the juvenile's mother. The juvenile first argues that the prosecutor's cross-examination of his mother, asking her five times to comment on the truthfulness of the Commonwealth's three witnesses, created a substantial risk of a miscarriage of justice. Although he did not object at trial, the juvenile now contends that, because the credibility of the witnesses was critical to his defense, this line of questioning materially influenced the guilty findings.

“It is a fundamental principle that ‘a witness cannot be asked to assess the credibility of his testimony or that of other witnesses.’ “ Commonwealth v. Triplett, 398 Mass. 561, 567 (1986), quoting from Commonwealth v. Dickinson, 394 Mass. 702, 706 (1985). The Commonwealth concedes that that portion of the cross-examination was improper and we agree.

Nevertheless, we cannot say that the error created a substantial risk of a miscarriage of justice. First, it is significant that the questions at issue were directed to a witness other than the juvenile, albeit a defense witness. In Triplett, the defendant repeatedly was asked to characterize the testimony of his mother, who was the Commonwealth's eyewitness, and he responded, “I'm not going to call my mother a liar.” Triplett, 398 Mass. at 566 n. 5. In this case, the juvenile's mother reiterated her testimony three times that the victim had denied to her that the juvenile assaulted her.

On the fourth occasion, she denied that the victim's mother had complained to her about the juvenile's approach to her.

“I asked her. I asked [the victim], she said no, [the juvenile] never touched her.” “Yes, I asked her. She said no.” “I think she's not telling the truth because I asked her, she didn't tell me.”

The juvenile's mother did not answer the fifth question, relating to Cummings's testimony. The juvenile's mother also was permitted to testify about the juvenile's exculpatory statements.

“She's not telling the truth. She never told me about going down there. She told me about touching her body.”

Even given that the issue in this case was the credibility of the witnesses, it is difficult to see how the juvenile was harmed by the error, which permitted a defense witness to say repeatedly that the Commonwealth's witnesses were lying. “If the error had not been made, the ... verdict would not have been different.” Commonwealth v. Nunes, 430 Mass. 1, 7 (1999). See Commonwealth v. Colon, 64 Mass.App.Ct. 303, 306–307 (2005).

“[The juvenile] said and said to the police he never had sex with [the victim].”

In addition, this was a bench trial. “In a jury-waived trial, we presume that the judge was not affected, as a jury might be, by the [impermissible] testimony of [a witness].” Commonwealth v. Murungu, 450 Mass. 441, 448 (2008). “A trial judge sitting without a jury is presumed, absent contrary indication, to have correctly instructed himself as to the manner in which evidence was to be considered in his role as factfinder.” Commonwealth v. Batista, 53 Mass.App.Ct. 642, 648 (2002).

Youthful offender conviction. A juvenile may be found guilty as a youthful offender if he commits

“an offense against a law of the commonwealth while between the ages of fourteen and seventeen which, if he were an adult, would be punishable by imprisonment in the state prison, and ... the offense involves the infliction or threat of serious bodily harm in violation of law.”
G.L. c. 119, § 54, inserted by St.1996, c. 200, § 2. The juvenile's second argument is that there was insufficient evidence to prove a threat or infliction of bodily harm in connection with the first sexual assault; for this reason, in his view, he should have been adjudicated delinquent, rather than found guilty of being a youthful offender on that charge.

“[W]here a prosecutor seeks a youthful offender indictment relying on ‘the infliction or threat of serious bodily harm’ component of the statute, the conduct constituting the offense must involve the infliction or threat of serious bodily injury.” Commonwealth v. Quincy Q., 434 Mass. 859, 863 (2001). Here, the victim testified that “every time” she did not do as he said, the juvenile would become angry and “get a belt and hit [her] with it” using different belts on different occasions. Although she could not specify an exact number of times the juvenile had hit her with a belt, she said “there [were] a lot.” From this testimony, the judge reasonably could have found that the use, or threat of use, of a belt to hit the victim when she did not comply with the juvenile's wishes permeated her relationship with him.

In addition, during the first incident, the juvenile physically moved the victim to the couch where she was assaulted, holding her down with his “strength” and pushing her back down each time she tried to get up and away from the juvenile. “The juvenile's position of authority, the age difference between the juvenile and the victim, and the vulnerability of the victim are sufficient to support a youthful offender” finding. Commonwealth v. Clint C., 430 Mass. 219, 226 (1999). There was no error.

Judgments affirmed.


Summaries of

Commonwealth v. Kirwin K.

Appeals Court of Massachusetts.
Oct 1, 2013
84 Mass. App. Ct. 1113 (Mass. App. Ct. 2013)
Case details for

Commonwealth v. Kirwin K.

Case Details

Full title:COMMONWEALTH v. KIRWIN K., a juvenile.

Court:Appeals Court of Massachusetts.

Date published: Oct 1, 2013

Citations

84 Mass. App. Ct. 1113 (Mass. App. Ct. 2013)
994 N.E.2d 817