Opinion
No. 15–P–1076.
10-07-2016
COMMONWEALTH v. Joseph BROWN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of six counts of rape of a child by force. These convictions were based on allegations that the defendant participated as a coventurer in the fourteen year old victim being raped orally, anally, and vaginally by two other men. The defense at trial was that the defendant was merely a bystander, and on appeal, he principally argues that there was insufficient evidence that he participated as a coventurer. The defendant also argues that the prosecutor erred in her closing argument. We affirm.
The jury also found the defendant guilty of contributing to the delinquency of a child, but he raises no issues with respect to that conviction.
The jury acquitted the defendant of two separate rape charges (vaginal and anal) based on his acting as a principal, and they deadlocked on a third rape charge (oral) put forward on that basis. The Commonwealth has since issued a nolle prosequi for the charge on which the jury deadlocked.
Sufficiency. In examining the defendant's claim of insufficiency, our inquiry is “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.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (quotation omitted). Based on the trial evidence and reasonable inferences therefrom, the jury could have found the following facts.
The defendant and the other two men approached the victim in the “pit” in Harvard Square and began a conversation with her. They then traveled with her by bus to Central Square. On the bus, the men supplied her with a mostly full “fifth” of brandy, which she “chugged”; the defendant sat next to the victim on the bus and did most of the talking with her. Once off the bus, one of the other men went to get more alcohol, while the defendant and the remaining man went into a building with her, eventually taking her to a darkened hallway that was so narrow that the victim's legs could not extend across the hallway when she was sitting with her back against the wall. There, the men supplied the victim—who weighed between 100 and 110 pounds—with additional alcohol, marijuana, and a Percocet pill. As a result, the victim became increasingly intoxicated to the point that she lost motor control and could hardly speak. After the victim began falling in and out of consciousness, the two men other than the defendant repeatedly raped her orally, anally, and vaginally.
The men knowingly entered the building without authority to do so by waiting by the door until someone left.
At one point, one of the men commented to the others that the victim looked like she was dead.
The victim testified that while one of the men was raping her vaginally, the other two men serially raped her orally. From that testimony, the jury reasonably could infer that all three men penetrated her, even though she could not be specific as to the particular manner in which the defendant raped her. Throughout, the defendant was “right next to” the raping as it occurred, and he held a lighter at times so close to the victim's face that she was “petrified” of getting burned. Under the defendant's account of the incident—which was introduced as part of the Commonwealth's case through statements he had made to police—he did not rape the victim but only masturbated while the other men did so.
The fact that the jury acquitted the defendant of two of the three indictments that charged him as a principal (and deadlocked as to the third) does not establish that the jury necessarily discredited the victim's testimony that all three men penetrated her. See Commonwealth v. Sylvia, 456 Mass. 182, 196 (2010), quoting from Commonwealth v. Scott, 355 Mass. 471, 475 (1969) (“[T]he rule is well established in criminal cases that mere inconsistency in verdicts, one of which is an acquittal, will not render the verdict of guilty erroneous even though such inconsistency may have indicated the possibility of compromise on the part of the jury”). See also Commonwealth v. Elliffe, 47 Mass.App.Ct. 580, 585 (1999), citing Commonwealth v. Cerveny, 387 Mass. 280, 285 (1982) ( “A finding of not guilty can result from factors having nothing to do with actual guilt”).
To establish the defendant's guilt, the Commonwealth had to prove beyond a reasonable doubt that he participated in the rapes and shared the intent to commit the crimes. Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009). As the defendant acknowledges, the Commonwealth need not “prove an anticipatory compact between the parties to establish joint venture.” Commonwealth v. Sexton, 425 Mass. 146, 152 (1997) (quotation omitted). It is enough to prove that at the “climactic moment” the parties acted together to carry out their goal. Ibid.
Viewed against that standard, the evidence plainly was sufficient. Rational jurors reasonably could have found that the defendant directly participated in the rapes in multiple respects: by helping to groom the victim and to lure her to the vacant hallway, by assisting in getting her intoxicated to the point of incapacity, by holding his lighter close to the victim's face to intimidate her, and by himself penetrating her in some fashion. The jury could have inferred the requisite intent from the same evidence. See Commonwealth v. Zanetti, 454 Mass. at 470 (endorsing jury instruction that jury “are permitted, but not required, to infer the defendant's mental state or intent from his [her] knowledge of the circumstances or any subsequent participation in the crime”).
The defendant argues that we cannot consider the testimony that he directly raped the victim in determining whether the evidence was sufficient for a conviction that was based solely on his having participated in a joint venture. This is not a correct statement of law. See Commonwealth v. Zanetti, 454 Mass. at 464–468 ; Commonwealth v. Housen, 458 Mass. 702, 706–707 (2011). In any event, the evidence was sufficient without considering that testimony. Indeed, even if the jury fully had credited the defendant's account, they could have taken his masturbating “right next to” the rapes as overt encouragement of them. We do take this opportunity to remind the Commonwealth that the Supreme Judicial Court has cautioned against employing special verdict forms distinguishing between principal and joint venture liability. See Commonwealth v. Zanetti, supra at 464–465. Having separate indictments raises the same issues.
Closing argument. The defendant also argues that the prosecutor misstated the evidence in three respects and engaged in unjustified speculation in another. As there was no objection, our review is limited to whether any errors caused a substantial risk of a miscarriage of justice. Commonwealth v. Morales, 453 Mass. 40, 52 (2009).
The defendant's claims that the prosecutor misstated the evidence are marginal at best. For example, the defendant argues that, even though the prosecutor accurately quoted his statement to police that the victim “seemed drugged,” by the order in which the prosecutor recounted his statements, she made it sound like the defendant had admitted that he was aware of the victim's condition before the rapes occurred (not just at the point when he left the scene, as he claimed). We discern no merit in the defendant's claim that such statements misstated the evidence, and in any event, there was no error that created any prejudice approaching a substantial risk of a miscarriage of justice. Similarly, we perceive no error, much less a substantial risk of a miscarriage of justice, in the prosecutor's responding to the defendant's argument that the defendant left the scene minutes before the others in order to disassociate himself from the crimes, by arguing that he instead may have left early to serve as a lookout.
We also note that the judge twice instructed the jury that closing arguments are not evidence.