Opinion
20-P-1419
04-29-2022
COMMONWEALTH v. Russell John PAGE, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of nine counts of rape, G. L. c. 265, § 22 (b ) ; ten counts of incest, G. L. c. 272, § 17 ; one count of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b ) ; and assault and battery, G. L. c. 265, § 13A (a ). The convictions involved one victim, Ava, the defendant's biological mother. The defendant admitted that he had committed incest with the victim multiple times, acknowledging that the sex was occasionally "rough." By contrast, the victim testified that she had repeatedly asked the defendant to stop when he engaged in the sexual contact and physical violence. The defendant appeals only from his convictions of rape, arguing that the trial judge erred in (1) excluding certain evidence of violence by the victim toward the defendant, and (2) denying his motion for access to privileged records from Domestic Violence Ended (DOVE), an organization that provides services to victims of domestic violence. We affirm.
At the close of the Commonwealth's case, the judge allowed the defendant's motion for a required finding of not guilty as to a tenth count of rape and an eleventh count of incest. The jury returned a verdict of not guilty of an eleventh count of rape.
A pseudonym.
Background. We recite the facts as the jury could have found them. The victim placed the defendant up for adoption at birth. With the consent of the defendant's adoptive father, Ava met the defendant in 2011, on his eighteenth birthday.
The defendant's adoptive mother passed away in 2008.
In the summer of 2011, the defendant stayed with Ava in her apartment for a period of six weeks. During that period the defendant was physically and verbally aggressive against Ava. At the start of the school year, the defendant stopped staying with Ava, though he would occasionally stay in a spare bedroom at Ava's apartment on the weekends. A few months after he began staying at Ava's on the weekends, the defendant started coming into Ava's room and asking to sleep with her. Ava allowed the defendant to sleep in the same bed with her because the defendant said that his adoptive mother had let the defendant do so and Ava wanted to "keep the peace."
The defendant would usually walk into Ava's room unclothed. He would also rub Ava's shoulders, arms, and legs, and Ava would push him away. Eventually, the defendant removed Ava's clothes and put his fingers inside her vagina. Ava kept telling the defendant to stop, but the defendant then put his penis in her vagina. In the years following this incident, the defendant continued to sexually assault Ava. Ava became more afraid of the defendant as he repeatedly assaulted her. In 2014, when the defendant sat on Ava, she tried to scratch his eyes, push her forearm towards his neck, and push his throat away.
On January 27, 2017, the defendant physically and sexually assaulted Ava again. Two days later, Ava drove herself to the hospital and was examined. She had several visible bruises on her body caused by the defendant's assaults. While at the hospital, Ava spoke to the police. The next day, the police took additional photographs of Ava's bruises.
In 2018, the defendant sent Ava text messages stating that he did not "mean to take things out on [her]," and "brutally assault, and almost kill [her] for the past seven years." He expressed that he was "very sorry and remorseful at the diabolical actions [he] took over the past seven years." Shortly after sending the text messages, the defendant wrote a letter to Ava stating "[d]ue to my drastic and volatile behavior, our relationship has been a living hell for not just you but me, as well. I love you with every ounce of my heart and soul."
At trial, the defendant did not dispute that he had committed incest with Ava, rather, he claimed the sex acts were consensual. To support his consent defense, the defendant filed a motion in limine seeking to admit evidence of three instances where Ava was violent towards the defendant. The motion in limine was denied.
Discussion. 1. Exclusion of evidence. The defendant's motion in limine included a written argument for admission of evidence of three incidents, from June 2013, September 2016, and November 2016, where Ava was violent towards him, presenting, he contended, a complete picture of the relationship between the defendant and Ava. With respect to the November 2016 incident, in which the victim kicked the defendant and fractured his orbital bone, the defendant also argued this evidence was admissible for purposes of impeachment. The judge addressed the motion after the first day of trial. In arguing the motion, however, the defendant only discussed the November 2016 incident and argued only the impeachment theory of admissibility. Defense counsel stated, "based on how the direct testimony [of Ava was] going," he did not know "whether or not [he] would ... inquire about" the November 2016 incident, but, if he did, "the one purpose ... would be" impeachment. Defense counsel did not mention the June 2013 and September 2016 incidents, nor did counsel discuss the theory about presenting a full picture of the relationship. The judge denied the motion in limine with respect to all three incidents, ruling that the defendant could not introduce evidence of an incident, and then introduce evidence of a contradiction for impeachment purposes, "if [the underlying incident] hasn't been addressed in direct or redirect."
The defendant argues that the trial judge erred in excluding evidence of violence by Ava towards the defendant where the defendant was entitled to present a full picture to the jury of his relationship with Ava to support his defense of consent. He argues the excluded evidence showed the victim was not afraid of him. "The short answer to this argument is that it was not made to the judge at trial." Commonwealth v. Gagnon, 45 Mass. App. Ct. 584, 588 (1998). "A defendant ‘is not permitted to raise an issue before the trial court on a specific ground, and then to present that issue to this court on a different ground.’ " Commonwealth v. Sa, 58 Mass. App. Ct. 420, 427 (2003), quoting Commonwealth v. Tyree, 387 Mass. 191, 213 (1982). Here, the defendant did not argue the theory of presenting a full picture of the relationship at trial; therefore, the defendant may not raise that argument before us.
Furthermore, "extrinsic evidence on a collateral matter may be introduced at trial for the purposes of impeachment only in the discretion of the judge." Commonwealth v. Farley, 443 Mass. 740, 751 (2005), quoting Commonwealth v. Chase, 372 Mass. 736, 747 (1977). Defense counsel argued that he should be permitted to introduce evidence of the November 2016 incident for impeachment only. It was within the judge's discretion to determine that the evidence should not be admitted. We do not discern an abuse of discretion here, particularly where Ava did testify about other incidents of violence between her and the defendant, including where she scratched the defendant's eyes and pushed her forearm towards the defendant's neck to push him away.
2. Privileged records. The defendant argues that the trial judge abused his discretion in refusing to issue a summons pursuant to Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885 (1979), for privileged DOVE records. We disagree.
The defendant's initial motion for the production of records was based on a letter from assistant district attorney Danielle Piccarini to defense counsel, stating that DOVE attorney Kim McIver had reported that statements by a DOVE employee named Brianna Hertford "may harm the prosecution of the case." The defendant argued that the records were "material, relevant, evidentiary and potentially admissible, as they contain statements about the specific allegations in this case." DOVE opposed the motion. DOVE represented to the court that Ava reported the rape to Hertford. A different attorney for DOVE advised the assistant district attorney and defense counsel that Ava engaged in DOVE services on April 1, 2014 and disclosed the sexual abuse to an intern named Jacqueline Stackhouse. The defendant filed a substitute rule 17 motion with the additional information.
During motion practice it was determined that whatever McIver said to Piccarini occurred during a telephone call.
The judge denied the motion. In denying the motion, the judge stated that he thought Piccarini was giving her best recollection of her conversation with McIver, but the judge did not "put much weight on that statement." The judge also found that the defendant's argument regarding inconsistencies in Ava's identification of the first complaint witness was a "red herring in this context" because the defendant sought the substance of Ava's reports, not the identity of the individual to whom Ava first reported.
"[A] defendant seek[ing] pretrial inspection of statutorily privileged records of any third party" must satisfy the requirements established in Commonwealth v. Dwyer, 448 Mass. 122 (2006). Commonwealth v. Labroad, 466 Mass. 1037, 1038 (2014), quoting Dwyer, supra at 139. It is well settled that " ‘[p]otential relevance and conclusory statements regarding relevance are insufficient’ to satisfy Dwyer’s requirements." Labroad, supra at 1039, quoting Commonwealth v. Lampron, 441 Mass. 265, 269 (2004). Instead, "a defendant must make a factual showing that the requested documents have a ‘rational tendency to prove [or disprove] an issue in the case.’ " Id. at 1038, quoting Lampron, supra at 269–270. The defendant bears the burden to "set forth with particularity some factual basis indicating how the privileged records were likely to be relevant and material to an issue in the case, and that an examination of those records would disclose exculpatory information material to the defendant's guilt." Commonwealth v. Bourgeois, 68 Mass. App. Ct. 433, 438 (2007). "Generalizations and unsubstantiated statements concerning a particular victim's credibility are not enough." Id. at 436. We accept the motion judge's finding that he discounted the Piccarini statement about what McIver may have said that Hertford said. In light of that finding, it was not an abuse of discretion for the motion judge to conclude that the defendant's showing was insufficient to satisfy his burden.
This case is more similar to Bourgeois, supra, and Commonwealth v. Jones, 478 Mass. 65, 70 (2017), than Labroad, supra, upon which the defendant relies. Here, as in Bourgeois and Jones, the basis for requesting the records was primarily the fact that Ava reported the sexual abuse to DOVE personnel. In the absence of any claim that Ava made any relevant statements while receiving treatment at DOVE, the defendant's showing was insufficient. Accordingly, the judge did not abuse his discretion when he denied the motion. Jones, 478 Mass. at 69, 71.
Judgments affirmed.