Opinion
No. 12–P–1298.
2013-07-18
COMMONWEALTH v. Elvis C. DEBARROS.
By the Court (GRASSO, SIKORA & MALDONADO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A grand jury indicted the defendant for rape. G.L. c. 265, § 22( b ). At the conclusion of a four-day jury-waived trial, a judge of the Superior Court found him guilty of the lesser included offense of indecent assault and battery upon a person over fourteen. G.L. c. 265, § 13H. Shortly after conviction, the defendant moved, inter alia, for a new trial upon a claim of newly discovered evidence. At the conclusion of an evidentiary hearing, the judge denied the motion. The defendant has appealed from the judgment and from the denial of the motion for a new trial and other postconviction relief. For the following reasons, we affirm.
Background. The judge heard the following evidence pertinent to the appeal. The twenty-two year old victim and the defendant met at Dino's bar in Brockton late on the night of December 19, 2009. They had arrived separately. The victim had drunk two nips of vodka en route to the bar. They had met before. They ordered at least one set of drinks at the bar. The victim had no memory of finishing her drink or of leaving the bar. Her next memory was that she had awakened on the following morning in the defendant's apartment bedroom with a “penetrating feeling” in her vagina. She was in bed beside the defendant. She was wearing only a bra and sweater. Her pants, underpants, and boots were on the floor. The victim and the defendant exchanged angry words. She quickly put on her underwear, pants, boots, and jacket, and hurried out of the apartment.
In the street, she borrowed a cellular telephone (cell phone) from a passerby, and called her boyfriend. She then walked to the home of a friend where she had been staying. There she noticed, for the first time, that her pants zipper was broken.
Later that morning, her boyfriend drove her to Brockton Hospital. A nurse conducted a sexual assault examination. The examination showed a depression and moderate discoloration below the vaginal opening. The medical examination included vaginal, perianal, rectal, and ear swabs and a blood sample.
Later in the day, the victim underwent an interview with a Brockton police officer. She told him that she had met the defendant, as a friend of a friend, and had seen him possibly ten to fifteen times before. She related that, when she had awakened in the morning, the defendant was in bed behind her and having sex with her. She said that she had dressed and left quickly.
The hospital examination had detected no semen in the victim's vaginal tract nor any deoxyribonucleic acid (DNA) of the defendant on the body or clothing of the victim. In addition, a search, pursuant to a warrant, of the defendant's apartment approximately ten days later turned up no blood on his sheets even though the victim had been menstruating on the night of their encounter. By stipulation, the Commonwealth and the defendant reported that the victim's boyfriend had informed the prosecution that, during her cell phone call to him immediately after leaving the defendant's apartment, she had described the defendant as trying to have sex with her.
The defendant testified. He acknowledged their meeting at the bar, their return to his apartment, and his interest in sex with her if that event developed. He related that she had taken off her boots and jacket and had then fallen asleep while he was preparing some food. He was unable to wake her. He had eaten, watched television, and then fallen asleep himself around 2:00 A.M. He made an attempt at sexual contact.
Within ten days after the finding of guilt, the defendant moved for postconviction relief upon two grounds: (1) that the evidence at trial did not permit a finding of the lesser included offense of indecent assault and battery; and (2) that newly discovered evidence would show that the victim had admitted fabrication of her testimony. The trial judge conducted an evidentiary hearing upon the claim of newly discovered evidence as a basis for a new trial. The evidence consisted of the testimony of Dina Braz. Braz reported that she had known the defendant for approximately seven years and had dated him for a period two months before the incident in question and that she had known the victim for about five years as a friend.
Braz testified that in March of 2010, approximately three months after the encounter, the victim had told Braz that she had falsified the story of rape or attempted rape in order to fend off the suspicions of her boyfriend. Braz testified further that the victim had informed her during the summer of 2010 that she would report the truth. Braz allegedly had never told the defendant or anyone else about the victim's acknowledgment because she had expected the victim to come forward with the truth. Braz acknowledged that the defendant had called her from the house of correction several days after his conviction and had given her an instruction to contact his attorney with her information.
At the evidentiary hearing, the victim testified that she had considered Braz a friend, had confided to her about the encounter with the defendant, but had never told Braz that she (the victim) had lied about the encounter.
Analysis. 1. Sufficiency of the evidence for a finding of indecent assault and battery. A finding of guilt of indecent assault and battery required evidence showing beyond a reasonable doubt (1) an intentional touching, (2) without justification or excuse, (3) of a nature harmful or offensive, and (4) of a nature indecent. Indecency will typically mean an unpermitted and intentional touching of the breasts or genitalia. See Commonwealth v. Perretti, 20 Mass.App.Ct. 36, 43–44 (1985); Commonwealth v. Ortiz, 47 Mass.App.Ct. 777, 779 (1999). It is settled that indecent assault and battery is a lesser included offense of rape. See Commonwealth v. Walker, 426 Mass. 301, 303–304 (1997). The distinction between the offenses is the absence of penetration.
Here the defendant argues that the Commonwealth's evidence confined the judge to a narrow dichotomy: either rape by reason of penetration; or acquittal by reason of the absence of any indecent contact. He relies upon reasoning to that effect in Commonwealth v. Ortiz, supra. In Ortiz the complainant had insisted that the defendant had penetrated her anally and had specifically rejected defense counsel's cross-examination proposing that the defendant had committed merely an attempted but incomplete anal assault. “As the evidence stood, the jury could find [that] rape had occurred but the evidence did not permit a finding that something less had occurred.” Ibid.
Here our evidence is markedly different. It leaves room for the finding that the defendant had not penetrated the victim, but that he had touched her in the vaginal area. The absence of semen, DNA, and of any of the victim's blood in his bedding or in his apartment undercut a finding of penetration. However, unlike the complainant in Ortiz, the victim here never renounced any attempt of the defendant to touch her indecently. Her intoxication or impaired capacity, her sleepiness, her lack of any clothing below the waist, and her “feeling” of penetration combined with the defendant's overnight proximity in bed and the discoloration beneath the vaginal orifice collectively provide an evidentiary basis for a finding beyond a reasonable doubt of indecent touching. The same evidence supports the judge's denial of postconviction relief or acquittal upon the basis of an evidentiary dichotomy between rape and innocence.
2. Denial of motion for a new trial. We review the judge's ruling “only to determine whether there has been a significant error of law or ... abuse of discretion.” Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986). We treat the judge's discretion with special deference because she was also the trial judge. Commonwealth v. Grace, supra. She may rely upon her unique knowledge of the evidence as she rules upon a posttrial motion for a new trial. Commonwealth v. Little, 384 Mass. 262, 269 (1981). That deference reaches its peak in circumstances in which the trial and motion judge must assess the credibility of witnesses at a posttrial evidentiary hearing upon a motion for a new trial. See Commonwealth v. Thomas, 399 Mass. 165, 167 (1987); Commonwealth v. Ridge, 455 Mass. 307, 325 (2009).
Here the judge had abundant grounds to disbelieve the testimony of Braz: her tardy emergence approximately two years after the victim's alleged admission of fabrication and only after the finding of the defendant's guilt; her prior relationship with the defendant; and her responsiveness to the defendant's initiative by a postconviction telephone call from confinement. These objective circumstances gave her story the color of a contrived afterthought. In addition, and more fundamentally, the judge was able to conduct a firsthand evaluation of Braz's credibility from a few feet away. She did not find the story credible. She observed that, even if Braz had appeared at trial, the resulting finding of guilt would not have changed.
Judgment affirmed.
Order denying motion for postconviction relief or for a new trial affirmed.