Opinion
14-P-117
05-04-2015
COMMONWEALTH v. SOLOMON KARANJA.
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
After a jury trial in Superior Court, the defendant was convicted of rape and of indecent assault and battery on a mentally retarded person. We affirm.
In discussing the latter crime, we use the term "mentally retarded" to conform with the statutory language in effect when the crime was committed, G. L. c. 265, § 13F, inserted by St. 1973, c. 468. We recognize that the statute now uses the term "intellectual disability." G. L. c. 265, § 13F, as amended by St. 2010, c. 239, §§ 71, 72.
Background. From the evidence, the jury reasonably could have found the following. In May of 1998, the victim was eighty-one years old and living in a specialized group home. She had severe physical and mental incapacities, and only a limited ability to communicate. On the morning of May 25, 1998, an attendant found her diaper full of blood. She was taken to the hospital where a doctor found a laceration in her vagina, as well as bruising on her shoulders. Samples taken from her vagina and the diaper revealed the presence of sperm cells.
The defendant was the only male attendant at the home during the period between her prior diaper change and when the bloody diaper was found. The defendant was also the only attendant of either gender there for a three-hour period on the night before the discovery of the diaper.
The police had an initial conversation with the defendant at the home before his shift ended, and they later telephoned him to let him know they were coming to his residence to speak with him. When the police arrived, he had fled. The defendant returned to the jurisdiction over a decade later (by which time the victim had died). At that point, a sample of the defendant's DNA (deoxyribonucleic acid) was taken to compare against the samples taken from the victim. The results are discussed below.
Discussion. DNA evidence. Without objection, one of the Commonwealth's experts twice used the shorthand expression that the profile of the defendant's DNA "matched" that of a contributor to the DNA found in the body fluids taken from the victim's vagina and diaper. On each occasion, the expert explained that this meant that the defendant could not be ruled out as a contributor to the body fluids tested, and she provided in detail the underlying statistical probabilities at issue. In this manner, the Commonwealth satisfied its obligation to put forward "reliable evidence indicating the significance of the match, that is, 'evidence of the probability of a random match of [the target's] DNA in the general population.'" Commonwealth v. Mattei, 455 Mass. 840, 851 (2010), quoting from Commonwealth v. Rosier, 425 Mass. 807, 813 (1997).
For example, the expert explained that the particular type of DNA profile obtained from the diaper and wipes "is not expected to occur more frequently that 1 in 1,103 of the Caucasian population, 1 in 942 of the African American population, 1 in 572 of the Hispanic population, and 1 in 202 of the Asian population." The defendant took the opportunity to explore such expected frequencies during cross-examination.
To be sure, in her closing argument, the prosecutor -- without any significant qualification -- referred to the DNA testimony as showing "an exact match" and "identical" results. However, this drew a sharp response from the trial judge who sua sponte issued the following instruction, which also impliedly rebuked the prosecutor:
"It's your memory of the evidence that controls. Not the attorneys[']. I do want to say however that there was an argument of a DNA -- I think the term that was used is a DNA match to the defendant. There was no testimony of a match to the defendant. There was testimony about frequency, but there was no testimony that the DNA matched the defendant's DNA. So just keep that in mind."The defendant raised no claim that this curative instruction was insufficient. Especially in the face of that instruction, any error in the prosecutor's unqualified use of the terms "exact match" and "identical" did not create a substantial risk of a miscarriage of justice.
Sufficiency of rape evidence. Contrary to the defendant's claims, in proving rape, the Commonwealth at trial did not confine itself to a theory that the victim lacked the capacity to consent. The jury were also instructed that "whoever has sexual intercourse . . . with a person, and compels such person to submit by force and against his will . . . shall be punished." There was ample evidence upon which the jury could have found that the defendant accomplished sexual intercourse by using actual force (vaginal bleeding and laceration, and bruising on the victim's shoulders). See Commonwealth v. Blache, 450 Mass. 583, 589 n.7 (2008) (noting that evidence of force also can establish lack of consent).
In any event, there was ample evidence that the victim lacked the capacity to consent and that the defendant knew or reasonably should have known this. In this regard, we note that the Commonwealth was not limited to proving that the victim's incapacity to consent was due to mental retardation. Finally, even if the Commonwealth were limited to proving incapacity to consent based specifically on mental retardation, there was sufficient evidence of that (as discussed infra).
The fact that mental retardation was the only type of mental incapacity referenced by the judge does not command a different result. See Commonwealth v. Fuller, 66 Mass. App. Ct. 84, 91 (2006) ("[T]he issue before the jury on the indictments before them was far broader than whether [the victim] was mentally retarded. The issue before the jury was whether [the victim] lacked the ability to consent to the acts the defendant . . . committed").
Sufficiency of proof of mental retardation. There was ample evidence that the victim suffered from profound mental incapacities. However, the defendant argues that there was insufficient proof that these problems stemmed from mental retardation, as opposed to, say, Alzheimer's disease. Looking, as we must, at the evidence as a whole, we disagree. We note, for example, that there was testimony that the home in which the victim lived was run by a company whose function was to provide services to the "developmentally disabled" under contract with the Department of Mental Retardation, and that before that, the victim lived for some three decades at the Dever State School. Although more direct testimony regarding the nature and cause of the victim's mental infirmities would have been helpful to the Commonwealth's case, we do not deem such evidence necessary. Compare Commonwealth v. Aitahmedlamara, 63 Mass. App. Ct. 76, 77 (2005).
Duplicative charges. The defendant argues that the conviction of indecent assault and battery on a mentally retarded person cannot stand, because it was a lesser included offense of rape. We disagree. To determine whether two charges are duplicative, we compare the elements needed to prove them. See Commonwealth v. Vick, 454 Mass. 418, 431 (2009). One element of the crime of indecent assault and battery on a mentally retarded person is that the victim in fact is mentally retarded. This element need not be proven to sustain a rape conviction even where the Commonwealth's theory is that the victim was incapable of providing consent. It follows that indecent assault and battery on a mentally retarded person cannot be a lesser included charge of rape.
Despite the Commonwealth's concession on this issue, we are to make our own independent evaluation of the legal question. Commonwealth v. Poirier, 458 Mass. 1014, 1015 (2010).
Judgments affirmed.
By the Court (Vuono, Milkey & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 4, 2015.