Opinion
13-P-322
01-12-2015
COMMONWEALTH v. ROBERT GRICE.
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 of aggravated rape of a child, G. L. c. 265, § 23A, and enticement of a child under the age of sixteen, G. L. c. 265, § 26C. The fourteen year old victim (to whom we shall refer by the pseudonym Beth) was the girlfriend of the defendant's stepson, Dann Shank. Shank was also charged with offenses relating to the same underlying incident, and the cases were joined for trial with the assent of all parties. On appeal, the defendant challenges the denial of a motion to suppress certain items and the admission of those items in evidence (issues also raised by Shank in his parallel appeal). Additionally, the defendant claims the trial judge erred in admitting certain statements made by Shank and in refusing to allow in evidence certain prior statements that a defense witness allegedly had made. We affirm.
The defendant was also charged with one count of indecent assault and battery on a person fourteen or over, G. L. c. 265, § 13H, and dissemination of matter harmful to minors, G. L. c. 272, § 28. The defendant was acquitted of these charges. A nolle prosequi was entered on the indictment charging the defendant with inducing a person under the age of sixteen to have sexual intercourse, G. L. c. 272, § 4.
We summarize the evidence adduced at trial. Shank lived with his mother, the defendant, and seven other children in a house in Townsend. Shank and Beth met in June of 2009 when they were sixteen and fourteen, respectively. They began having a physically intimate relationship shortly thereafter.
From the record, it appears that two of the children were Shank's siblings, and the other five were Shank's cousins, to whom Shank's mother and the defendant were foster parents.
According to Beth, the defendant and Shank were "closer than normal," and they often discussed prurient subject matter. She claimed that the defendant had offered to give her and Shank advice and "classes" about sex, an invitation that she initially took as a joke. Beth testified that, one day in the summer of 2009, Shank -- who at that point had turned seventeen -- picked her up at her house and brought her back to his house. When they arrived, Shank told Beth that the defendant wanted to speak with them in his bedroom, but would not reveal the subject matter. Beth further testified that the defendant was already seated on the bed when she and Shank came in, whereupon Beth noticed there was also a toolbox with latches and a lock. According to Beth, after making some sexually suggestive advances, the defendant asked her to remove her bra; when she refused, Shank unhooked and removed it from under her shirt. The defendant then opened the toolbox, which was filled with "a lot of sex toys," and picked up one of the objects. He also removed a bottle of flavored lubricant from the toolbox and asked Beth to taste it (which she pretended to do). Beth testified that at this juncture, she became uncomfortable, prompting the defendant to repair to the bedroom balcony while Shank sought to calm her down. Beth put her bra back on, but once the defendant came back into the room, Shank removed it again and also removed her underwear. According to her, the defendant asked her to put Shank's penis in her mouth, which she did briefly. The defendant then applied some of the lubricant to his hand before reaching up Beth's skirt and putting his fingers into her vagina while using the other hand to fondle her breast. While the defendant did this, Shank held Beth's hand and kissed her. After this, Shank put his own fingers into Beth's vagina, while the defendant asked Beth how this felt. Beth testified that the defendant put his fingers into her vagina a second time, and Shank put his penis into her mouth a second time. Eventually, according to Beth, the defendant left the room after Shank asked him to do so in order that he and Beth could have intercourse. Instead, Beth hastily put her clothes back on and exited the house.
The record is ambiguous about the exact date, but apparently the incident occurred sometime in July of 2009.
Once outside, Beth waited for Shank (her means of getting home). Shank eventually came downstairs after speaking to the defendant. According to Beth, Shank told her that the defendant said he was sorry. Shank then drove Beth home. She testified that, on the car ride home, Shank said, "Oh my god, I just watched my dad molest you. I'm never going to let that happen again." Beth and Shank continued to date for another nine months. According to her, on two later occasions when she alluded to the incident in the defendant's bedroom, Shank suggested that she forget that it happened and that he did not want the defendant to go to jail.
The defendant testified in his own defense. According to him, Shank and Beth came into his bedroom on their own initiative because they wanted his advice about sex. The defendant testified that he only spoke with Shank and Beth, and that he neither asked them to perform sexual acts nor showed them any sex devices from the toolbox. Shank did not testify.
Denial of the motion to suppress. In arguing that the motion to suppress the toolbox and its contents should have been granted, the defendant makes essentially the same arguments as those raised by Shank in his parallel appeal. For the reasons stated in the memorandum and order pursuant to our rule 1:28 issued today in that case, we discern no error in the denial of the motion to suppress. Commonwealth v. Shank, post (2015).
Introduction of the toolbox and related evidence. For the reasons stated in our memorandum and order in Commonwealth v. Shank, supra, we discern no reversible error in the allowance in evidence of the toolbox and its contents, the bottle of lubricant, and related photographs. To the extent that a limited amount of such evidence (such as a witness's specific comment about the condition of the sex toys) should not have been admitted, there was no objection, and the introduction of that evidence did not cause a substantial risk of a miscarriage of justice.
Although the current appeal and the one brought by Shank were never formally consolidated, the codefendants coordinated their briefing of the issues in common. Shank took the lead in arguing the issues regarding the toolbox, with the defendant mostly incorporating Shank's arguments by reference. At the joint trial, the roles appear to have been reversed: the defendant took more of the lead on the toolbox issues, with Shank largely seeking to piggyback on the defendant's objections (to the extent any were made). As we pointed out in note 3 of Commonwealth v. Shank, supra, it appears that "[Shank's] counsel did not join in the general ongoing objection" raised by his codefendant. Notwithstanding the defendant's additional, general objection, he stands in no better position than Shank, and the analysis in that case applies equally to him.
Statements of Shank. The defendant argues that allowing Beth to testify about several incriminating out-of-court statements made by Shank ran afoul of Bruton v. United States, 391 U.S. 123 (1968), and that trial counsel was constitutionally ineffective in not objecting to such testimony and in not seeking a limiting instruction regarding it. To prevail on his ineffective assistance of counsel claim, the defendant must show, first, that trial counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Second, the defendant must demonstrate that any deficiency in counsel's performance denied the defendant a "substantial ground of defence." Ibid. Where, as here, the alleged error concerns counsel's failure to object at trial, the Saferian prejudice inquiry is "essentially the same as the substantial risk [of a miscarriage of justice] standard we apply to unpreserved errors." Commonwealth v. LaChance, 469 Mass. 854, 858 (2014).
We begin by considering whether Beth's testimony as to what Shank said gave rise to error under Bruton. See Commonwealth v. Dykens, 438 Mass. 827, 837 (2003) (performance prong of Saferian is not satisfied if there was no error). Under Bruton and its progeny, a codefendant's incriminating statements implicating the defendant may not be introduced against the defendant where: (1) the statements are offered at a joint trial, (2) the statements are "clearly inadmissible" as against the defendant, (3) the codefendant does not testify, and (4) the statements are "powerfully incriminating" such that a curative instruction will not suffice to obviate the prejudice caused by the statements. Commonwealth v. Boyer, 52 Mass. App. Ct. 590, 597 (2001), quoting from Commonwealth v. Collado, 426 Mass. 675, 681 (1998).
The statements on which the defendant focuses are those that Beth claimed Shank made to her after the incident. Not all of these statements "expressly implicat[e]" the defendant in any crime. Commonwealth v. Blake, 428 Mass. 57, 60 (1998). The statement that the defendant said he was "sorry" does not on its own indicate for what he was "sorry." In any event, the statements may well have been admissible, even as to the defendant. For example, based on a great deal of evidence that the defendant and Shank were acting in concert to carry out a joint plan, the jury reasonably could have inferred -- had they been asked -- that the defendant and Shank were coventurers, and that Shank made his statements in furtherance of the joint venture, e.g., in order to placate Beth to stop her from reporting the incident. See Commonwealth v. Clarke, 418 Mass. 207, 219 (1994). In this vein, the Commonwealth accurately highlighted that the most damaging statement for the defendant ("Oh my god, I just watched my dad molest you") was immediately followed by Shank's statement that "I'm never going to let that happen again" (which the jury could have inferred was an attempt to mollify Beth and to assure her that she need not report what happened).
The jury could have inferred that the two jointly set up the meeting in the defendant's bedroom, met beforehand to discuss what would happen there, acted in close concert while the rapes took place, and met to discuss how to placate Beth after she left the house.
The Commonwealth need not have charged the defendant and Shank under a joint venture theory to permit the admission of hearsay under the joint venture exception. See Commonwealth v. Cruz, 430 Mass. 838, 846 (2000). In his reply brief, the defendant correctly points out that, had there been a timely objection, the judge could not permissibly have admitted the evidence on a joint venture theory unless she made findings that a joint venture existed and that the challenged statements were made in furtherance thereof, accompanied by a limiting instruction to the jury. Commonwealth v. Bright, 463 Mass. 421, 426 (2012). In this case, however, no objection was made to the introduction of the statements, and no limiting instruction was ever requested. The defendant has provided no authority, and we are aware of none, in support of the proposition that the trial judge was required to make such findings sua sponte. To the contrary, "[h]earsay, once admitted, may be weighed with the other evidence, and given any evidentiary value it may possess." Commonwealth v. Jones, 439 Mass. 249, 261 (2003), quoting from Commonwealth v. Carmona, 428 Mass. 268, 271 (1998).
The Commonwealth also argues that the statements would have been admissible on various other theories. For example, it argues that some of the statements amounted to "excited utterances." Based on our resolution of this case, we need not address such contentions.
Even if we were to assume that the admission of Shank's statements gave rise to a Bruton problem and that counsel's performance in not objecting to their admission fell "measurably below that which might be expected from an ordinary fallible lawyer," Saferian, 366 Mass. at 96, the defendant has not shown that sufficient prejudice resulted from such statements to warrant reversal. Unlike in the typical Bruton scenario where the codefendant's incriminating statements were purportedly made to police or an independent third party, here it is the complaining witness herself who claimed that the codefendant made them. The jury's consideration of the statements, like the rest of Beth's testimony, rises and falls on her credibility. Without accepting the Commonwealth's contention that Beth's testifying to those statements could do nothing to bolster her credibility, any corroborative value that the statements added was marginal. Having examined the relevant portion of Beth's testimony in the context of the evidence as a whole, we conclude that even if defense counsel should have objected to that testimony, its admission did not create a substantial risk of a miscarriage of justice.
In fact, the Commonwealth argued in its brief, and pressed at oral argument, that a Bruton violation can never occur when a nontestifying codefendant's statements are introduced through the alleged victim. We do not rest on such grounds. Rather, we assume that a victim's repetition of a nontestifying codefendant's statements can give rise to a Bruton violation. The fact that the statements were admitted through the victim's testimony is nonetheless relevant to the degree of prejudice that resulted.
Exclusion of evidence. The defendant also argues that the trial judge erred in excluding Facebook messages that one of the defense witnesses, Amanda Creamer, purportedly had sent to Beth. After Creamer testified on direct that Beth was not allowed to go upstairs, counsel attempted to offer Creamer's Facebook messages to contradict Beth's testimony. When the prosecutor objected to Creamer's being asked about the messages, trial counsel stated at side bar that Creamer's testimony was elicited in part to "directly contradic[t] [Beth]'s testimony that no one was upstairs." The trial judge correctly explained that this was improper, and that Creamer was required to testify to the events based on her personal knowledge. See Mass. G. Evid. § 602 (2014). The trial judge correctly ruled that Creamer could be asked about the prior statements only if she indicated a lack of memory of the events (for the purpose of refreshing her recollection) or to impeach Creamer's own testimony through prior inconsistent statements. The trial judge further invited counsel to lay a foundation for getting into the Facebook messages. Counsel chose not to do so, but moved on (perhaps because impeaching Creamer's credibility would not have aided the defendant's cause). We discern no error in the exclusion of the messages.
The relevant Facebook message includes Creamer's statement that she was "upstairs and downstairs in and out of the room the whole time and nothing . . . happened."
Judgments affirmed.
By the Court (Kafker, Cohen & Milkey, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 12, 2015.