Opinion
18-P-45
03-21-2019
COMMONWEALTH v. JOHN NOWELL.
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 trial, a jury convicted the defendant of assault with intent to murder, four counts of assault and battery by means of a dangerous weapon, assault and battery, and assault with intent to rape. The defendant contends that all of his convictions should be reversed because the judge failed to excuse two jurors for cause, and that the assault with intent to rape conviction should be reversed because the judge wrongly prevented him from presenting a defense. We affirm.
1. Juror challenges. The defendant challenges the judge's refusal to excuse two jurors for cause, claiming that both jurors expressed uncertainty about their impartiality. The Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights "guarantee to the criminally accused the right to a trial by an impartial jury." Commonwealth v. Susi, 394 Mass. 784, 786 (1985). "The presence of even one juror who is not impartial" violates this right. Commonwealth v. Vann Long, 419 Mass. 798, 802 (1995). A judge has wide discretion in assessing potential jurors' impartiality, and may rely on a juror's demeanor and unequivocal statement of impartiality to find the juror indifferent. See Commonwealth v. Williams, 481 Mass. 443, 447 (2019); Commonwealth v. Nelson, 91 Mass. App. Ct. 645, 650 (2017).
"[A] determination by the judge that a jury are impartial will not be overturned on appeal in the absence of a clear showing of abuse of discretion or that the finding was clearly erroneous." Commonwealth v. McCoy, 456 Mass. 838, 842 (2010), quoting Commonwealth v. Lopes, 440 Mass. 731, 736 (2004). Generally, a judge abuses her discretion in seating a juror whose prejudice is manifest, Commonwealth v. Clark, 446 Mass. 620, 630 (2006), or "who will not state unequivocally that he or she will be impartial." Commonwealth v. Colton, 477 Mass. 1, 17 (2017).
a. Juror 159. The defendant contends that juror 159 did not unequivocally express her impartiality because she repeatedly stated that she did not "think" her past experiences would affect her impartiality. During voir dire, the judge asked juror 159 if there was anything about the nature of the charges that would affect her impartiality, and the juror said, "I don't think that there is." The judge responded, "You don't think there is?," and the juror said, "No." Sensing that more information was forthcoming, the judge asked, "Is there a but there?" Juror 159 referred to the juror questionnaire where she indicated that she was a rape victim in Egypt and that her daughter was a rape victim in New York City. The juror was "sure" that these experiences did not cause her to question her ability to be impartial. The judge inquired further, eliciting that the juror was raped thirty to forty years ago, her daughter was raped five years prior to the trial, her daughter was in counseling, and that neither perpetrator was prosecuted. Juror 159 again affirmed her impartiality. The judge declined to excuse her for cause, and the defendant used a peremptory challenge.
The judge did not abuse her discretion. Despite juror 159's past experience and that of her daughter, she expressed no manifest bias and repeatedly stated that she could be impartial. See Commonwealth v. Waters, 27 Mass. App. Ct. 64, 70-71 (1989) (no abuse of discretion not to exclude juror who stated "he didn't think his experiences would affect his judgment"). When the judge learned of information that might indicate bias, the judge asked detailed follow-up questions. "Because the juror's subsequent response here fairly could be viewed as unequivocal, and the judge apparently credited it as such, we discern no abuse of discretion in the empanelment of the juror." Colton, 477 Mass. at 17.
b. Juror 162. The defendant argues that juror 162's initially equivocal responses and emotional behavior rendered her biased. When asked if the nature of the charges would affect her impartiality, juror 162 responded, "I don't think so. I don't know." The judge asked for clarification, and the juror stated, "I don't think so," and "No." In response to further questions from the judge, juror 162 disclosed that her sorority sister was a victim of a sexual offense and that "[i]t's too painful for her to talk about." Juror 162 also revealed that one year before trial her boyfriend was falsely accused of a sexual offense by a classmate. The juror did not "think" these experiences would affect her impartiality.
We disagree with the defendant's suggestion that the juror referred to her own discomfort in speaking about the sexual offense. We read juror 162's statement that it was painful for "her" to discuss the offense to refer to her sorority sister's discomfort, not her own.
When defense counsel, with the judge's permission, asked the juror to confirm that she would be impartial, juror 162 responded, "I don't know." The judge then said, "You told me before you could be. Are you now changing your mind and saying you can't be?" The juror answered, "I think I can be," and began tearing up. When the judge inquired whether the juror's emotional response was caused by the empanelment process, particularly the questioning by the judge and counsel, the juror answered in the affirmative and added that she had never been in a court house before. After asking the juror to reflect on her ability to be impartial, the judge asked again if her boyfriend's and sorority sister's experiences would impair her impartiality. Juror 162 said, "No." After the judge refused to excuse the juror for cause, the defendant exercised a peremptory challenge.
The judge did not abuse her discretion in declining to excuse juror 162 for cause. In response to the juror's initial vacillation, the judge asked specific questions about the juror's prior experiences. Juror 162 answered these questions and stated she did not "think" these experiences would affect her impartiality. The mere use of "think" does not indicate an equivocal answer. See Waters, 27 Mass. App. Ct. at 70-71. Although the defendant maintains that this answer registered doubt, the judge understood this answer as unequivocal, and we will not second guess the trial judge, who had the benefit of observing the juror's demeanor. See Nelson, 91 Mass. App. Ct. at 650. When juror 162 expressed doubt upon further questioning from defense counsel, the judge properly instructed the juror "to examine [her] head and [her] heart." Juror 162 explained that her emotions did not stem from past experiences. When the judge again asked if those experiences prevented her from being impartial, the juror replied, "No." Because the juror unequivocally stated she could be impartial after the judge "explor[ed] the grounds for a possible claim that the juror was not impartial," the judge did not abuse her discretion in concluding that the juror stood indifferent. Commonwealth v. Amazeen, 375 Mass. 73, 83 (1978).
This case is unlike Clark, 446 Mass. at 628-629, where the judge abused his discretion in seating a juror who "believed African-Americans as a group were more likely to commit crimes because of their economic status" but affirmed that "she could be impartial." Juror 162 made no comparable assertion of bias, for example, that sexual assault victims are more or less likely to tell the truth. A juror with personal connections to both a sexual assault victim and a person falsely accused of a sexual offense is not automatically rendered biased.
Because we conclude that the judge did not abuse her discretion, we need not decide if the defendant suffered prejudice. See Commonwealth v. McCoy, 456 Mass. 838, 842 (2010) (prejudice shown when judge erroneously does not excuse juror for cause and defendant exhausts all peremptory challenges, forcing acceptance of juror that defendant otherwise would have challenged).
2. Ability to present a defense. The defendant argues that the judge erroneously precluded him from defending against the charge of aggravated rape, G. L. c. 265, § 22 (a), by preventing him from introducing evidence to rebut "the Commonwealth's argument of sexual assault." Specifically, the defendant sought to establish that the victim, a convicted drug dealer, hid drugs in his rectum, that the foreign body present in an X-ray was drugs, and that the defendant did not intend to rape the victim but merely sought to retrieve these drugs. The defendant, who did not testify, sought to present this defense by cross-examining the victim as to his past history of drug dealing, and having a police officer testify as an expert witness that drug dealers hide drugs in their rectums.
The defendant was charged with aggravated rape, but convicted of the lesser included offense of assault with intent to commit rape.
The Sixth Amendment and art. 12 secure the right to present a defense to a criminal charge. See Taylor v. Illinois, 484 U.S. 400, 408-409 (1988); Commonwealth v. Durning, 406 Mass. 485, 494 (1990). This right allows the defendant "to call witnesses to testify on his behalf," id. at 495, and to "cross-examine the prosecution's witnesses," Commonwealth v. Miles, 420 Mass. 67, 71 (1995). See Davis v. Alaska, 415 U.S. 308, 315 (1974). Nonetheless, a judge has broad discretion to exclude witness testimony and limit the scope of cross-examination if, among other reasons, the evidence is of marginal relevance or pertains to collateral matters. See Commonwealth v. Avalos, 454 Mass. 1, 7 (2009); Commonwealth v. Johnson, 431 Mass. 535, 538 (2000); Durning, 406 Mass. at 497.
The crime of rape requires proof that the defendant "committed (1) sexual intercourse (2) by force or threat of force and against the will of the victim." Commonwealth v. Lopez, 433 Mass. 722, 726 (2001), citing G. L. c. 265, § 22. Sexual intercourse is defined as "forcible penetration, no matter how slight," Commonwealth v. McJunkin, 11 Mass. App. Ct. 609, 613 (1981), and encompasses penetration by "part of a person's body or other object into the genital or anal opening of another person's body." Commonwealth v. Gallant, 373 Mass. 577, 584 (1977). See Commonwealth v. Cifizzari, 397 Mass. 560, 577 (1986) ("rape committed by unnatural sexual intercourse encompasses penetration by the use of inanimate objects").
A rape is "aggravated" if it either causes serious bodily harm or is committed as part of a joint enterprise or during the commission of certain enumerated crimes. See G. L. c. 265, § 22 (a).
Essentially, the defendant's proffered defense was that he intended to penetrate the victim's rectum to retrieve drugs, not to achieve sexual gratification. Even if credited, proof of this motive provides no defense. "Rape, at common law, and pursuant to G. L. c. 265, § 22, is a general intent crime." Lopez, 433 Mass. at 728. Thus, the Commonwealth must prove only that the defendant "intend[ed] to do the act constituting intercourse," Commonwealth v. Fuller, 399 Mass. 678, 686 (1987); no specific intent needs to be shown. See Commonwealth v. Grant, 391 Mass. 645, 649-650 (1984); Commonwealth v. Lefkowitz, 20 Mass. App. Ct. 513, 519 (1985) ("the prosecution has proved rape if the jury concludes that the intercourse was in fact nonconsensual . . . without any special emphasis on the defendant's state of mind"). The Commonwealth does not have to prove that the defendant had a sexual motive in penetrating the victim, just that the defendant intended penetration.
The judge prevented the defendant from introducing this evidence because the defendant lacked a reasonable evidentiary basis to support his theory, not because the evidence was immaterial to the elements of the charged offense. However, we may affirm on any ground supported by the record. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).
As applied here, the defendant would have committed rape if he intentionally used force to penetrate the victim's anal opening without the victim's consent, regardless of whether the defendant did so to retrieve drugs or for sexual gratification. Because the defendant would be guilty whether or not the jury credited his alternative theory, his proffered evidence was not relevant. See Commonwealth v. Dunn, 407 Mass. 798, 807 (1990) ("Evidence is relevant if it has a rational tendency to prove a material issue"). The judge did not abuse her discretion in limiting the cross-examination of the victim and excluding the defendant's proposed expert witness.
Nor would this evidence negate the charge of which the jury actually convicted the defendant. Assault with intent to rape requires proof the defendant assaulted the victim while "possess[ing] the intent to rape." Commonwealth v. Nickerson, 388 Mass. 246, 253 (1983). Because assault with intent to rape incorporates the general intent crime of rape, the defendant's proffered evidence is irrelevant to this offense for the same reason it is irrelevant to the rape charge. See Commonwealth v. Mahar, 21 Mass. App. Ct. 307, 314-315 (1985) (affirming assault with intent to rape conviction without requiring proof of defendant's specific motive for attempting to rape victim).
Judgments affirmed.
By the Court (Sullivan, Massing & Sacks, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 21, 2019.