Opinion
15-P-1506
08-15-2017
COMMONWEALTH v. Richard J. MCCORMICK.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Richard J. McCormick, appeals from his convictions of five counts of rape of a child in violation of G. L. c. 265, § 23. He contends that the motion judge erred in (1) denying his motion to dismiss the indictments as time barred under G. L. c. 277, § 63 ; (2) denying his motion to dismiss the grand jury indictments, pursuant to Commonwealth v. McCarthy, 385 Mass. 160 (1982) ; and (3) denying his motion for a mistrial. We affirm.
1. Motion to dismiss indictments as time barred. On August 23, 2012, a grand jury returned five indictments charging the defendant with rape of a child in violation of G. L. c. 265, § 23. The defendant contends that the motion judge should have allowed his motion to dismiss for several reasons, namely: (1) the motion judge should have decided the motion at the time the motion to dismiss was filed, and because the evidence before the grand jury showed that the rapes alleged took place in the summer of 1979, such that prosecution was time barred by the summer of 1985, see G. L. c. 277, § 63 ; (2) the tolling provisions of § 63 were inapplicable because he was "usually and publically a resident" in Massachusetts during the relevant time period; (3) § 63 violates art. 2 of the Massachusetts Declaration of Rights because observance of church hierarchy and the vow of obedience is constitutionally protected worship; (4) the tolling provision violates art. 11 of the Massachusetts Declaration of Rights by favoring congregational religious sects and denominations over hierarchical forms; (5) the tolling provision violates art. 46 of the Massachusetts Declaration of Rights and the free exercise and the establishment clauses of the First Amendment to the United States Constitution; (6) the tolling provision violates the equal protection and privileges and immunities clauses of the United States Constitution by discriminating between residents and nonresidents of the Commonwealth; and (7) the tolling provision deprived the defendant of due process and a fair trial.
The indictments state that the defendant committed the rapes alleged between July 1, 1981, through September 1, 1981, and July 1, 1982, through September 1, 1982.
a. Timeliness of indictments. The motion judge did not abuse his discretion in reserving the issue of timeliness for the jury. The statute of limitations is an affirmative defense, and it is properly raised by a motion to dismiss. See Commonwealth v. Shanley, 455 Mass. 752, 778, 780 (2010). There was a dispute of fact in the grand jury testimony as to whether the offenses took place in the summer of 1979 (in which case they would be time barred) or the summer of 1981 or 1982 (in which case they would be timely). When there is a factual dispute as to the timing of the offenses, the dispute is properly reserved for the jury. See id. at 778 ; Sheila S. v. Commonwealth, 57 Mass. App. Ct. 423, 427 (2003).
At the close of the Commonwealth's case, the defendant waived the statute of limitations defense and did not submit that defense to the jury.
The defendant also contends that the evidence before the grand jury was insufficient to show that the rapes alleged occurred after the summer of 1979. He maintains that the indictments were therefore time barred by July, 1985, before the first of many statutory amendments that tolled and extended the statute of limitations. See G. L. c. 277, § 63. See also Commonwealth v. Bargeron, 402 Mass. 589, 592 (1988) (amendments to § 63 applicable retrospectively to crimes committed prior to expiration of statute of limitations); Commonwealth v. Barrett, 418 Mass. 788, 789 n.2 (1994) ("[A]n amendment to the limitations statute cannot be applied retroactively to indictments already time barred"). The testimony before the grand jury was in conflict, but there was evidence that the rapes alleged occurred either in the summer of 1981 or 1982, which would have extended the time for filing the indictments to 1987 or 1988 under the then-applicable six year statute of limitations. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Carter, 474 Mass. 624, 625 (2016), the grand jury could have inferred that the witness's first year at camp was either 1981 or 1982, and the statute of limitations ran 1987 or 1988, well after the statute was first amended, effective September 30, 1985. See generally ibid.
The prosecutor's questions made reference to the summer of 1979. The witness, who was an adult by the time the grand jury was convened, also testified, however, that he attended the camp for three years, and that only two of the years were years in which he stayed overnight. He attended the camp with his younger brother and his older brother. His older brother only attended the camp for the first two years. A certificate awarded to the older brother was dated July 23, 1982, and signed by the defendant. Detective Dziadose testified that the witness had told him that he had attended the summer camp for three years, in the early 1980's with his two brothers, and that his older brother did not attend the last year.
b. Usually and publicly a resident. The defendant contends that the tolling provision contained in G. L. c. 277, § 63, was inapplicable to him because he was "usually and publicly a resident" of Massachusetts during the relevant time periods. He asserts that the words "usually and publicly a resident" are not to be equated with domicile, and that the tolling of the statute did not apply to him, even though he was domiciled elsewhere, because he was working at the camp.
The defendant is correct in that "the words of § 63 under consideration are not to be equated with domicil." Couture v. Commonwealth, 338 Mass. 31, 34-35 (1958). The statute, however, provides that "the period of limitation is tolled during any period a person accused of crime is absent from the Commonwealth." Id. at 34. Therefore, the tolling provision was applicable to the defendant at any point when he was absent from Massachusetts, regardless of where he was domiciled. Id. at 34-35.
c. Freedom of worship under art. 2. The defendant maintains that the tolling of the statute of limitations violates art. 2 of the Massachusetts Declaration of Rights because the observance of church hierarchy and the vow of obedience is a form of worship within the meaning of art. 2. Article 2 states in relevant part: "[N]o subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping GOD in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship." Except for the enumerated exceptions, rights under art. 2 are absolute. See Society of Jesus of New England v. Commonwealth, 441 Mass. 662, 676 (2004) (Society of Jesus of New England ). Under the worship prong of art. 2, "one is free to ‘worship[ ]’ in any form, as long as that form of ‘worship[ ]’ does not disturb the peace or obstruct the worship of others." Id. at 677, quoting from art. 2. "[T]he essentially absolute protection of art. 2 appears directed at the ritual and ceremonial aspects of ‘worship [ ].’ " Ibid.
Even these aspects of worship are subject to the two exceptions under art. 2, disturbing the peace or obstructing the worship of others. We need not reach the exceptions in light of our disposition.
The defendant maintains that obeying orders from his superiors in the Roman Catholic Church regarding his place of residence outside the Commonwealth constitutes worship of the Catholic faith. "Religious beliefs—what a person thinks, what faith he holds in his heart and mind—are indeed protected absolutely." Society of Jesus of New England, 441 Mass. at 676. "Conduct in furtherance of those beliefs, however, is the ‘exercise’ of religion, and government infringements on religiously inspired conduct are permissible if they satisfy the compelling State interest balancing test."Ibid. The adherence to internal church governance and policy is not worship, protected under art. 2, because it does not involve any "ritual and ceremonial aspects." Id. at 677. To hold otherwise would mean that "all actions taken based on religious belief qualified as ‘worship[ ]’ under art. 2, [and] the free exercise clause of art. 46, § 1, would be superfluous." Ibid. Contrast Society of Jesus of New England v. Boston Landmarks Commn., 409 Mass. 38, 41-44 (1990).
d. Congregational vs. hierarchical forms under art. 11. The defendant contends that the tolling of the statute of limitations violates art. 11 of the Massachusetts Declaration of Rights because it favors congregational religious sects and denominations over hierarchical forms. "[C]ongregational as well as hierarchical churches are entitled to autonomy over church disputes touching on matters of doctrine, canon law, polity, discipline, and ministerial relationships." Callahan v. First Congregational Church of Haverhill, 441 Mass. 699, 708 (2004) (quotation omitted). This case does not involve the defendant's qualifications to be a priest, nor does the tolling provision of G. L. c. 277, § 63, impinge on canon law, discipline, or ministerial relationships.
In the context of defenses based on church autonomy, the Supreme Judicial Court has stated that "[a]pplying any laws to religious institutions necessarily interferes with the unfettered autonomy churches would otherwise enjoy, [but] this sort of generalized and diffuse concern for church autonomy, without more, does not exempt them from the operation of secular laws." Society of Jesus of New England, 441 Mass. at 668, quoting from Bollard v. California Province of the Soc. ofJesus, 196 F.3d 940, 948 (9th Cir. 1999).
e. Article 46, § 1, and free exercise and establishment clauses. The defendant contends that the tolling provision violated art. 46, § 1, of the Massachusetts Declaration of Rights, and the free exercise and establishment clauses of the First Amendment to the United States Constitution. He asserts that the provision interfered with the Catholic Church's hierarchical form of internal governance to assign its clerics to different geographical locations. He also claims that the tolling provision interfered with his free exercise of religion because it would have forced him to move back to Massachusetts, contrary to his vow of obedience, which required him to stay where the church sent him.
(i) Article 46, § 1. "Under amendment art. 46, § 1, claims that the State is improperly burdening the free exercise of religion are assessed using a balancing test." Society of Jesus of New England, 441 Mass. at 669. We look to see if the "State action complained of ... ‘substantially burdens [the] free exercise of religion, and, if it does, whether the Commonwealth has shown that it has an interest sufficiently compelling to justify that burden.’ " Ibid., quoting from Attorney Gen. v. Desilets, 418 Mass. 316, 322 (1994). "The party claiming an unconstitutional burden on the free exercise of religion ‘must show (1) a sincerely held religious belief, which (2) conflicts with, and thus is burdened by, the [S]tate requirement. Once the claimant has made that showing, the burden shifts to the [S]tate. The [S]tate can prevail only by demonstrating both that (3) the requirement pursues an unusually important governmental goal, and that (4) an exemption would substantially hinder the fulfillment of the goal.’ " Id. at 669-670, quoting from Attorney Gen. v. Desilets, supra at 322-323.
"Because we conclude that enforcement of the [statute] would pass muster under the compelling State interest balancing test that we still use under art. 46, § 1, we need not separately address whether enforcement of the [statute] would violate the free exercise clause of the First Amendment." Society of Jesus of New England, 441 Mass. at 669 n.7.
Passing on whether the defendant met his initial burden to show that his departure from the Commonwealth was motivated by a sincerely held religious belief, the defendant failed to show how the tolling provision burdened his religious belief. Cf. Society of Jesus of New England, 441 Mass. at 670. The defendant was free to leave the State. He was not free to commit a crime within the State. Cf. Commonwealth v. George, 430 Mass. 276, 283-284 (1999) (tolling provision did not impose impermissible burden on right to travel). Even if some burden is imposed, compelling State interests outweigh any burden on the defendant. The State has a strong interest in prosecuting sexual offenses against children. See Society of Jesus of New England, supra at 671-672. The State also has "an interest in assuring that the defendant is available locally not only to enhance the possibility of detection but also to avoid the burdens of extradition proceedings, should he be charged, his whereabouts become known, and he refuses to return voluntarily." George, supra at 283, quoting from Scherling v. Superior Ct., 22 Cal. 3d 493, 501 (1978). See Society of Jesus of New England, supra at 672. An exemption would "substantially hinder the fulfillment of the goal," id. at 670, because an "out-of-State defendant, even one who does not secrete himself, may present additional difficulties to State authorities in the discovery and investigation of crime." George, supra at 284.
(ii) Establishment clause. "In order to pass muster under this prong of the First Amendment, the law in question must have a secular purpose, ‘its principal or primary effect must be one that neither advances nor inhibits religion,’ and it ‘must not foster an excessive government entanglement with religion.’ " Society of Jesus of New England, 441 Mass. at 674, quoting from Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971).
"We apply the same criteria for purposes of State constitutional analysis." Society of Jesus of New England, 441 Mass. at 674.
The purpose of the statute is secular because the intent of the statute is to aid in the prosecution of crimes, not to advance a religious agenda. See George, 430 Mass. at 283. "With regard to the test of ‘effect’ on religion, we must look at the law's ‘principal or primary effect,’ Lemon v. Kurtzman, supra, not at its incidental effects." Society of Jesus of NewEngland, 441 Mass. at 674. Here, the principal or primary effect was not to advance religion because the "tendency of [the statute] to influence anyone's religious beliefs" is very remote. See id. at 675. Cf. Grendel's Den, Inc. v. Goodwin, 662 F.2d 102, 104 (1st Cir. 1981) ("[T]he relevant question is whether the law has the direct and immediate effect of advancing religion as contrasted with only a remote and incidental effect advantageous to religious institutions" [quotation omitted] ). The tolling provision does not "result in any excessive government entanglement with religion" because the provision does not cause the Commonwealth to "decide matters of religion or embroil itself in the internal workings" of the Catholic Church. Society of Jesus of New England, supra.
f. Equal protection and privileges and immunities clauses. The defendant contends that the tolling of the statute violated the equal protection and privileges and immunities clauses of the United States Constitution because tolling the statute "arbitrarily treated Massachusetts domiciliaries as superior to identically-situated out-of-[S]tate domiciliaries."
"Although the defendant does not refer to a specific provision of the Massachusetts Declaration of Rights, ... the tests under both the Federal and the State Constitution are the same." George, 430 Mass. at 280 n.5.
In George, 430 Mass. at 282, the Supreme Judicial Court held that the tolling of the statute did not impair the defendant's right to travel, "a right that ... arises out of the privileges and immunities clause and the equal protection clause," because "(1) a defendant's right to travel is qualified by his criminal conduct within the State; and (2) the tolling provision serves a legitimate State purpose." See Jones v. Helms, 452 U.S. 412, 422-423 (1981). The defendant claims that there is distinction to be made between the right to reside in a desired State and the right to travel, and it is the right to reside that is at issue in this case. Assuming that the right to travel includes the right to reside, see Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 901-902 (1986), the tolling provision here rationally relates to a legitimate and substantial State interest. See George, supra at 282-283. Cf. Martinez v. Bynum, 461 U.S. 321, 328 (1983) (discussing State interest in upholding residence requirements).
g. Due process and fair trial. The defendant contends that the tolling of the statute deprived him of a fair trial because the preindictment delay caused him to lose evidence and that the government recklessly delayed the indictments when the witness's brother, a police officer, failed to report the rapes after they were disclosed them to him. "A defendant seeking dismissal of an indictment due to preindictment delay ‘must demonstrate that he suffered substantial, actual prejudice to his defense, and that the delay was intentionally or recklessly caused by the government.’ " Commonwealth v. Dame, 473 Mass. 524, 530 (2016), quoting from George, 430 Mass. at 281. The defendant has not, however, indicated what evidence was in fact lost or how the delay prejudiced his defense. "Finding no demonstrated prejudice, we hold the defendant's right to a fair trial was not violated." George, supra at 282. See Dame, supra at 531.
The tests under the Federal and State Constitution are the same. See George, 430 Mass. at 280 n.5.
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2. Sufficiency. Prior to trial, the defendant filed a motion pursuant to Commonwealth v. McCarthy, 385 Mass. at 162-163, in which he argued that insufficient evidence was presented to the grand jury to support the indictments charging him with rape of a child in violation of G. L. c. 265, § 23. "Ordinarily, a ‘court will not inquire into the competency or sufficiency of the evidence before the grand jury.’ " Commonwealth v. Carter, 474 Mass. at 630, quoting from Commonwealth v. Rex, 469 Mass. 36, 39 (2014). "At the very least, [however,] the grand jury must hear enough evidence to establish the identity of the accused and to support a finding of probable cause to arrest the accused for the offense charged." Carter, supra, quoting from Rex, supra at 40. "Probable cause requires sufficient facts to warrant a person of reasonable caution in believing that an offense has been committed ...; this standard requires considerably less than that which is required to warrant a finding of guilt." Carter, supra, quoting from Commonwealth v. Levesque, 436 Mass. 443, 447 (2002).
The defendant contends there was insufficient evidence of penetration presented to the grand jury to support the indictments. " ‘Unnatural sexual intercourse’ under G. L. c. 265, § 23, the revised statute punishing rape of a child, has been defined as including ‘anal intercourse ... and other intrusions of a part of a person's body or other object into the ... anal opening of another person's body.’ " Commonwealth v. Nylander, 26 Mass. App. Ct. 784, 788 (1989), quoting from Commonwealth v. Gallant, 373 Mass. 577, 584 (1977). "Penetration (or intrusion into) the genital or anal opening is required to prove rape." Id. at 791. "The penetration must be of the anal opening, not simply the groove between the buttocks." Commonwealth v. Capone, 39 Mass. App. Ct. 606, 609 (1996). "Digital penetration is sufficient to support a charge of rape." Ibid.
The grand jury heard testimony that the defendant took the witness, who was at that time a child, into a storage room and touched the child's anus with his finger in a manner which caused the child to say, "[O]uch, that hurts." The defendant also used his penis to touch the child's rectum and anus area, causing him to say, "[O]w." The evidence was sufficient for the grand jury to reasonably conclude that penetration had occurred. See Nylander, 26 Mass. App. Ct. at 786 ; Capone, 39 Mass. App. Ct. at 608-609.
The defendant also contends that "child's penis in mouth" does not fall within the meaning of rape in G. L. c. 265, § 23, because "it does not involve penetration of a genital or anal opening or penetration by a sexual organ." He argues that there was no evidence that the child was ever forced to perform fellatio on him and that the indictment corresponding to that charge should have been dismissed.
"[I]n Massachusetts, one who forces another to perform fellatio on him is guilty of rape, Commonwealth v. Gallant, [373 Mass. at 590 ], as is one who by force performs fellatio on another, see Commonwealth v. Hackett, 383 Mass. 888, 888 (1981)." Commonwealth v. Guy, 24 Mass. App. Ct. 783, 787 (1987). "Nowhere in [the] cases is it suggested that the person's body being entered must be the [witness's]." Hackett, supra. Here, "child's penis in mouth" is rape within the meaning of G. L. c. 265, § 23, even if the child is not being forced to perform fellatio on the defendant. See Hackett, supra; Guy, supra ("We hold, that, in a case in which the evidence warrants the jury in finding [as the evidence did in this case] that a female was forced to penetrate the vaginas of two other females with her tongue, such sexual acts constitute rape on the first female within the meaning of G. L. c. 265, § 22 [a ]").
3. Mistrial. The defendant contends that the trial judge abused her discretion when she denied the defendant's motion for a mistrial. The defendant filed a pretrial motion to "exclude as evidence any and all reference to the defendant ... allegedly abusing other people." After the prosecutor explained that she was "not seeking to introduce anything," the trial judge allowed the motion. The testimony nonetheless emerged on direct examination by the prosecutor. The witness testified that in order to avoid further abuse by the defendant, he feigned sleep and the defendant would then "g[et] another boy." The judge granted the defendant's motion to strike and gave an immediate curative instruction, telling the jury to disregard the testimony because "it should not have come out at all." The instruction was repeated at the end of the witness's testimony. At the end of the trial, during the jury charge, the judge once again instructed the jury to disregard that portion of the testimony.
"We review the denial of motion for a mistrial for an abuse of discretion." Commonwealth v. Durand, 475 Mass. 657, 668 (2016). "When a jury have been exposed to inadmissible evidence, the judge may rely on a curative instruction to ‘correct any error and to remedy any prejudice.’ " Ibid., quoting from Commonwealth v. Kilburn, 426 Mass. 31, 38 (1997). "As long as the judge's instructions are prompt and the jury do not again hear the inadmissible evidence ... a mistrial is unnecessary." Ibid., quoting from Commonwealth v. Garrey, 436 Mass. 422, 435 (2002), S.C., 438 Mass. 356 (2003).
Here, the evidence was stricken and the judge instructed the jury on three separate occasions to disregard the inadmissible testimony. "[J]urors are presumed to have followed the judge's instructions to disregard the evidence." Durand, 475 Mass. at 669. The judge did not abuse her discretion.
Judgments affirmed.