Opinion
19-P-135
06-18-2020
COMMONWEALTH v. ARMEN AGABALIAN.
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 was convicted by a Superior Court jury of three counts of rape of a child by force, G. L. c. 265, § 22A, and three counts of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B. The gist of the charges was that the defendant, then in his early forties, sexually assaulted his stepdaughter when she was eleven to thirteen years old. On appeal the defendant argues (1) that a videotape (video) and audio recording of the police interview, in which he admitted to engaging in some sexual acts with the victim, should have been suppressed as involuntary; (2) that there was insufficient evidence of constructive force; (3) that there was insufficient evidence of penetration; and (4) that the prosecutor argued facts not in evidence in closing argument. We affirm.
Background. The defendant married the victim's mother in 2001, when the victim was nine years old. Initially the defendant and the victim had a good relationship, but when the victim was eleven the relationship became "very inappropriate." The defendant was often a caretaker for the victim in the afternoons after school, while her mother worked outside the home. During these times the defendant began giving the victim massages, over her clothing, and progressed to touching her under her clothing, then touching the victim's breasts and then touching her vagina, all initially with his hands, and then with his mouth. The victim testified at trial that the assaults would occur on "average . . . once a week" when she was eleven through fourteen years old. She also testified that, on at least one occasion, the defendant's "penis went into [her] mouth."
The sexual assaults stopped when the victim went to high school, at age fourteen. Two years later the victim's mother and the defendant divorced, although the mother and the defendant remained friendly. Eventually the victim went away to college, and the defendant moved to France.
The victim encountered the defendant again when she was twenty-two. The defendant was back in Massachusetts visiting friends and relatives, and the victim's mother invited him to Thanksgiving dinner. The victim objected, and eventually told her mother of the sexual assaults. The mother and the victim contacted the police, who then brought the defendant to the police station and questioned him at length. The defendant received and signed Miranda warnings in advance, and the interrogation was video and audio recorded. During the interrogation the defendant admitted to performing oral sex on the victim when she was under the age of fourteen.
The defendant moved to suppress the recording on the grounds that his statements were involuntary, and given in violation of his Miranda rights. The judge denied the motion after an evidentiary hearing. The defendant was thereafter convicted of all charges.
Discussion. 1. Motion to suppress the interrogation. The defendant first argues that the audio and video recorded interrogation should have been suppressed. He contends that he was under the influence of alcohol at the time; that English is not his native language (the defendant is an Armenian national) and he therefore had difficulty understanding the questions; and that the police employed improper interrogation tactics. The defendant argues that collectively these facts led to his will being overborne, such that his admissions were involuntary. We perceive no error.
The defendant has a right under the Fifth Amendment to the United States Constitution and under art. 12 of the Massachusetts Declaration of Rights to be free of compelled self-incrimination. See Commonwealth v. Jones, 481 Mass. 540, 545 (2019). Where a defendant invokes this right and challenges the admission of a statement resulting from custodial interrogation, the Commonwealth must prove (1) that the defendant was given proper Miranda warnings, and that he waived his Miranda rights "knowing[ly], intelligent[ly], and voluntar[ily,]" and, (2) separately, "that any statement was made voluntarily" (quotation and citations omitted). Commonwealth v. Newson, 471 Mass. 222, 229 (2015). "The Commonwealth bears the burden of proving" voluntariness "beyond a reasonable doubt." Commonwealth v. Durand, 457 Mass. 574, 596 (2010). "The test for voluntariness is 'whether, in light of the totality of the circumstances . . . the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act." Id. at 595, quoting Commonwealth v. Souza, 428 Mass. 478, 483-484 (1998).
Although the crux of the defendant's arguments is that his statements during the interrogation were involuntary, at some points in his brief he also argues that his waiver of Miranda rights was involuntary, again based upon his having drunk alcohol, and the alleged issues with language. For the same reasons discussed, infra, we reject the contention that the Miranda waiver was involuntary.
On the day of the interrogation the police picked up the defendant in the afternoon at his aunt's home, brought him to the police station, and questioned him for approximately ninety minutes. The defendant received Miranda warnings in advance, orally waived his rights, and signed a written waiver. The motion judge heard testimony from one of the two interrogating officers, and also from the defendant's aunt. The judge also reviewed the audio and video recordings of the interrogation. Based on that evidence the judge found that the defendant was not under the influence of alcohol during the interrogation. While there was evidence that the defendant had drunk alcohol at lunch that day, he had fallen asleep thereafter, and the interrogation did not begin until 4:10 P.M. The police officer, who along with her partner, had asked the defendant to come to the police station and had given him a ride, testified that she had observed no signs of intoxication, and the judge credited that testimony. Similarly, although English was not the defendant's primary language (the defendant speaks four languages -- Armenian, Russian, English, and French), the judge found that the defendant "was able to understand and speak English quite well." The judge based this finding on a careful review of the defendant's responses to questions on the audio and video recording, as well as the officer's testimony that, on the way to the police station, the defendant stated that he did not have any difficulty conversing in English. These findings, based in part on oral testimony and in part on the recording, were not clearly erroneous.
The thrust of the defendant's arguments center on the interrogation itself, and the tactics employed by the officers. The motion judge rejected these arguments, in a thoughtful memorandum. Having reviewed the recording, we agree with the motion judge. While we have little to add to his analysis, we emphasize the following: (1) the defendant was fully advised of his Miranda rights in advance, and declared that he "absolutely" wished to talk to the police; (2) at no time did he ask for the questioning to stop, or to speak to a lawyer; (3) the defendant made damaging admissions about "touching" the victim early in the interrogation, before he was subjected to any of the tactics of which he now complains; (4) the defendant showed a sound command of the English language throughout, and the few times he was uncertain of the meaning of a word, he asked for a definition before answering. The defendant's care was particularly evident in his response to the question, "[D]id you have sex with [her]," where the defendant twice sought clarification and, upon being advised that the question was limited to vaginal intercourse, answered in the negative.
The defendant singles out some of the "tactics" the police employed as crossing the line into coercive conduct. He points out that the officers repeatedly accused him of lying and "misleading the police"; asked whether he would take a lie detector test "to find out if [he was] lying"; asked a question they knew to have no basis ("you watched a pornographic movie with her"); and attempted to minimize the defendant's behavior ("I'm a guy myself"). Having reviewed the entire interrogation, however, we agree with the motion judge that these questions, or suggestions, which were not pervasive, did not result in overbearing the defendant's will. The video and audio recordings were properly admitted.
2. The evidence of force. The defendant next argues that there was insufficient evidence of force to convict him of rape of a child with force. He points out that the victim testified that the defendant "never physically put any force on me"; there were no verbal threats; the victim at times initiated the sexual conduct; and when the victim asked the defendant to stop, he would stop.
The victim testified, "I wouldn't say verbally initiated, but it had just become so habitual at that time that it was just something that was done, something that I just did without thinking." She agreed that, sometimes, she would say, "Let's just get to it."
The crime of rape of a child by force requires proof not only that the defendant had sexual relations with a child, but that he "compel[led] such child to submit by force and against [her] will." G. L. c. 265, § 22A. The element of force, however, does not require a showing of physical force; it also can be proved by showing "nonphysical, constructive force." Commonwealth v. Lopez, 433 Mass. 722, 728-729 (2001). See Commonwealth v. Armstrong, 73 Mass. App. Ct. 245, 254 (2008). Constructive force can be established when the relationship between the defendant and the victim is such that the defendant can overbear the will of the victim without overt physical acts. We have described the relevant factors as:
"the age of the child, and the time of the alleged acts, the circumstances where it occurred, the circumstances of being alone with the caregiver or adult in charge, the relationship between the child and the adult, and whether the child would have been in a position to resist considering age, size, and other factors, the degree of sophistication, or in a position to complain under the circumstances" (quotation omitted).Commonwealth v. Moniz, 43 Mass. App. Ct. 913, 913 (1997). See Commonwealth v. Wallace, 76 Mass. App. Ct. 411, 417 (2010).
Applying the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), we conclude that there was sufficient evidence of constructive force here. The victim was eleven, twelve, and thirteen years old when the crimes occurred -- a child, lacking in maturity and experience. She was dependent upon the defendant for food, for transportation, and for her overall care. More importantly, the defendant was a father figure, and in a position to command the victim's trust. Furthermore, here there was more direct evidence that the victim's will was overborne. The victim testified that after the assaults, she frequently "would start crying, and I would tell him that I hated him and that I didn't want to do it anymore." She also testified that "I would usually run to my room upset." Finally, as noted above, on at least one occasion the defendant put his penis in the victim's mouth.
The evidence, in its totality, was sufficient to find that the victim was compelled to participate against her will. Indeed, the Commonwealth's evidence showed a relationship as described in our cases -- where "the victim endured the rapes with resignation and with no will to resist." Armstrong, 73 Mass. App. Ct. at 256.
3. Additional arguments. The defendant's remaining arguments require little discussion. There was sufficient evidence of penetration. The victim testified that the defendant "touched" her vagina with his tongue, used his tongue "to stimulate the area," and that he did so "until the point that I would climax." No more was required. See Commonwealth v. Aviles, 58 Mass. App. Ct. 459, 468 (2003) (evidence of touching of vulva or labia sufficient to show penetration). We are also unpersuaded that the prosecutor's closing argument was improper. The prosecutor's reference that the defendant "probably had the keys" to the house may have well been a fair inference from the evidence, but in any event it was not material in the context of the evidence at trial.
Judgments affirmed.
By the Court (Hanlon, Wendlandt & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 18, 2020.