Opinion
13-P-1919
05-15-2015
COMMONWEALTH v. JUSTIN SCHOFIELD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Justin Schofield, was indicted on two counts of rape, and convicted of one count of indecent assault and battery. In this consolidated appeal, the defendant contends that he was entitled to a jury instruction regarding his intoxication. See Commonwealth v. Mountry, 463 Mass. 80 (2012) (Mountry). Because this issue was not raised by the defendant at trial, we review for error, and if there was error, for a substantial risk of miscarriage of justice. Commonwealth v. Marinho, 464 Mass. 115, 122 (2013).
Ann testified that after attending a party at which she consumed a lot of alcohol, she fell asleep on a friend's couch and awoke to find the defendant performing a sexual act on her. The Commonwealth's theory at trial was that Ann had passed out and was too impaired to consent. See Commonwealth v. Blache, 450 Mass. 583, 591-592 (2008) (Blache). There was evidence that the defendant was also intoxicated.
A pseudonym.
A police officer testified that he had been to the house where the party took place on three occasions that evening, and that he observed the defendant to be intoxicated. A neighbor testified that the defendant was drunk and slurring his words.
The judge instructed the jury in accordance with Blache that the Commonwealth was required to prove that Ann was incapable of consent due to alcohol, drugs, unconsciousness, or some other factor. He also instructed that the Commonwealth had the burden of proving that "Mr. Schofield knew or reasonably should have known . . . -- . . . that is a reasonable person in Mr. Schofield's position should have known -- that she was in that kind of condition."
The defendant acknowledges on appeal that the error is unpreserved. With respect to the "knew or should have known" portion of the Blache instruction, the Commonwealth brought the matter of the defendant's intoxication to the judge's attention, stating, "I don't know if there's a defense that he was intoxicated." The judge ruled that no such defense existed. However, the judge gave defense counsel the opportunity to review Blache and make a request regarding instructions. The defendant did not request any instruction regarding his level of intoxication and did not object to the instructions as given.
After trial in this matter was concluded, the Supreme Judicial Court decided Mountry, which held that the Commonwealth "had to prove what the defendant reasonably should have known . . . , not what the average reasonable unintoxicated person would have known." Id. at 92 (quotations omitted). In his motion for new trial and on appeal the defendant contends that Mountry is a logical extension of Blache and is therefore retroactive. He further asserts that he was prejudiced by the failure to instruct the jury that they could consider debilitating intoxication in determining whether he knew or reasonably should have known of Ann's capacity to consent. See Mountry, 463 Mass. at 91-92.
The Supreme Judicial Court has emphasized that rules of superintendence are generally prospective. See Commonwealth v. Dagley, 442 Mass. 713, 720-721 (2004), cert. denied, 544 U.S. 930 (2005). See also Commonwealth v. Russell, 470 Mass. 464, 478 (2015). The Blache instruction was adopted as a rule of superintendence, but because the conviction was reversed on other grounds, the holding applied at retrial without further discussion. The issue decided in Mountry "was not presented in Blache." Mountry, 463 Mass. at 89. Still, Mountry did not address whether its holding was a "new" rule of superintendence or an extension of Blache. In Mountry, supra at 94, the claim of error was preserved and the court affirmed the conviction on the basis that the evidence against the defendant was overwhelming.
We need not decide whether Mountry is retroactive because even if it were, we do not discern a substantial risk of a miscarriage of justice. The primary defense at trial was consent. The core of the defense was that both parties had been seen kissing and "grinding" outside of the building earlier in the evening by one of the police officers, that all of their sexual activity was consensual, and that Ann's denials of this conduct reflected poorly on her credibility. The defendant did not request instructions regarding his intoxication or argue to the jury that he was intoxicated, much less that he was too intoxicated to assess whether Ann was unable to consent. In this respect, the defendant's intoxication was not a live issue at trial. See Commonwealth v. Brady, 380 Mass. 44, 51 (1980); Commonwealth v. Burke, 414 Mass. 252, 259-260 (1993), and cases cited. The judge was not required to give an instruction based on a theory of the defense that was not advanced by the defendant. See Commonwealth v Nieves, 429 Mass. 763, 769 (1999).
Moreover, although there was evidence at trial that the defendant was intoxicated, there was no evidence of how much he drank or that his intoxication was so debilitating at the time of the assault such that he was unable to "possess the requisite knowledge." Mountry, supra at 90 n.5 & 93. Ann testified that when she awoke to find the defendant licking her, the defendant feigned sleep. She then yelled, kicked him in the head, got up, and tried to hit him with a frying pan. The defendant first attempted to deny the accusation, but was able to run away, hide in a cemetery, and call his sister to come get him. This conduct "suggests he knew exactly what he had done, [and] that he knew it was wrong." Mountry, supra at 94.
Finally, unlike the instruction in Mountry, the instruction given here did not preclude the jury's consideration of the defendant's intoxication. The judge instructed the jury that they should consider the evidence from the perspective of a reasonable person in the "defendant's shoes." The instruction permitted, but did not highlight, consideration of intoxication. The lack of an additional instruction regarding the defendant's intoxication did not create a substantial risk of miscarriage of justice where no argument based on debilitating intoxication was presented to the jury, and the evidence suggested that the defendant was sentient enough to feign sleep, and when that proved ineffective, to flee.
We briefly address the defendant's remaining contentions. The defendant maintains that the prosecutor's closing argument painted him as a predator who targeted another woman who successfully rebuffed him, "preyed" on Ann when she was "defenseless" and made raw appeals to emotion. A prosecutor may "argue forcefully for the defendant's conviction." Commonwealth v. Wilson, 427 Mass. 336, 350 (1998). See Commonwealth v. Carriere, 470 Mass. 1, 19 (2014). "[E]nthusiastic rhetoric, strong advocacy, and excusable hyperbole" is permitted as the "jury are presumed to have a certain measure of sophistication in sorting out excessive claims on both sides." Commonwealth v. Wilson, supra (citations omitted). The use of the predator/prey analogy was not impermissible where the Commonwealth's theory was that the defendant had performed a sexual act on an unconscious woman. Similarly, where the Commonwealth's theory was that an adult woman was sexually assaulted after passing out from excessive alcohol consumption, the prosecutor's analogy to college students who are raped after drinking too much remained within the realm of dramatic description, although both analogies should be approached with caution, as either could cross the line under other circumstances. See generally Commonwealth v. Seng, 436 Mass. 537, 555-556 (2002) ("There is a distinction between a dramatic description in an argument and an argument designed to appeal to the jury's emotions").
We have also considered the defendant's argument that the judge abused his discretion in failing to order a new trial "in the interest of justice" pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). There is no basis upon which to conclude that the judge made "a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotations and citation omitted).
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Kafker, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 15, 2015.