Opinion
18-P-31
09-18-2019
COMMONWEALTH v. Said SAID.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant, Said Said, was convicted of aggravated kidnapping in violation of G. L. c. 265, § 26 (indictment no. one); aggravated rape in violation of G. L. c. 265, § 22 (a ) ; indecent assault and battery on a person age fourteen or older in violation of G. L. c. 265, § 13H ; and assault and battery in violation of G. L. c. 265, § 13A (a ). Prior to sentencing, the judge allowed the Commonwealth's motion to reduce the jury's verdict from aggravated kidnapping to kidnapping on indictment no. one. On appeal, the defendant argues that (1) the conviction of aggravated rape based on kidnapping and the conviction of kidnapping are duplicative; (2) the conviction of indecent assault and battery and the conviction of assault and battery are duplicative of the conviction of aggravated rape; and (3) an expert witness impermissibly testified beyond her expertise and without a proper foundation laid for the testimony. For the following reasons, we affirm in part and reverse in part.
The defendant was also convicted of misuse of a credit card over $250 in violation of G. L. c. 266, § 37C (e ), and larceny from a person, as a lesser included offense of unarmed robbery in violation of G. L. c. 265, § 19. These convictions are not a subject of this appeal.
Background. On the evening of June 21, 2014, the victim had dinner and drinks with her boyfriend and some friends at a restaurant in the Seaport District of Boston. Her boyfriend eventually left with a friend to go to another bar. The victim left the restaurant around midnight, alone and intoxicated, to catch a cab and join him. She flagged down a white van with a livery plate that she believed to be a cab, sat in the middle row of seats, and told the driver, the defendant, to drive her to a specific bar in Boston. Instead of taking her to the bar she requested, the defendant drove in the opposite direction, eventually stopping in an abandoned parking lot.
The defendant got out of the van, opened the sliding door to the back seats, and started to climb on top of the victim, who testified that she was "absolutely frozen with fear." The defendant pulled at the victim's dress, tried to kiss her neck, and touched her hips, breasts, and stomach. The victim attempted to kick and punch the defendant, who was pulling on her dress so hard that she felt like he was choking her. The defendant put his fingers inside the victim's vagina. The victim threatened to call the police, and the defendant, who had by then stopped grabbing her and started to leave the van, took her cell phone from her. He also took her wallet and the cash that was in her purse. The defendant then drove her to downtown Boston and angrily told her to "[g]et the fuck out of the car." After the victim got out of the van, a pedestrian helped her contact her boyfriend. The victim was taken by ambulance to the hospital, where she was examined by Sexual Assault Nurse Examiner (SANE) Jennifer Powell. Within a few days of the attack, the victim noticed bruises developing on her hips and sides, and scratches on her breasts, all of which she photographed. She had her period at the time of the attack and experienced vaginal bleeding lasting longer than usual. In a filmed interview with police, which was played for the jury, the defendant admitted to picking up the victim in his van, taking her to a secluded place, and touching her breasts, buttocks, and vagina. He further stated that because she was so intoxicated and did not realize he was touching her, he could do whatever he wanted to her.
Discussion. 1. Duplicative conviction: kidnapping. The defendant first argues, and the Commonwealth concedes, that the conviction of kidnapping is duplicative of the conviction of aggravated rape where kidnapping was the only aggravating factor, in violation of the prohibition against double jeopardy. We agree. "The double jeopardy clause of the Fifth Amendment to the United States Constitution, and protections recognized in Massachusetts statutory and common law, prevent a criminal defendant from being tried more than once for the same offense." Commonwealth v. Love, 452 Mass. 498, 502 (2008). Further, "where, on the evidence and the judge's charge in a particular case, one crime could have been proved completely by evidence forming part of the necessary proof of the other crime, imposition of consecutive sentences is improper." Commonwealth v. Martins, 38 Mass. App. Ct. 636, 637-638 (1995). Here, the judge instructed the jury on the elements of aggravated kidnapping and aggravated rape. The judge further instructed the jury that kidnapping was the sole aggravating factor in the rape conviction and therefore, in convicting the defendant of aggravated rape, the jury necessarily found the elements for kidnapping satisfied. Consequently, the convictions of aggravated rape and kidnapping violated the double jeopardy clause and punishment for both crimes was duplicative. See Commonwealth v. Petrillo, 50 Mass. App. Ct. 104, 110-111 (2000). The judgment on indictment no. one (kidnapping) must therefore be vacated.
See the Fifth Amendment to the United States Constitution ("[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb"); G. L. c. 263, §§ 7, 8 ; Gallinaro v. Commonwealth, 362 Mass. 728, 736-737 (1973).
2. Duplicative convictions: indecent assault and battery and assault and battery. The defendant next argues that the convictions of indecent assault and battery and of assault and battery were duplicative of the conviction of aggravated rape, because the touchings on which the assault and battery charges were based were incidental to the crime of rape, and that separate charges cannot factually be supported by the evidence. We do not agree. Assault and battery is a lesser included offense of indecent assault and battery, see Commonwealth v. Morin, 52 Mass. App. Ct. 780, 787 (2001), and "indecent assault and battery ... is a lesser included offense of rape ...." Commonwealth v. Thomas, 401 Mass. 109, 119 (1987). However, "[a]n indecent contact which is separate from and not incidental to the act of penetration does not merge with the crime of rape to constitute but a single offense ...." Commonwealth v. Fitzpatrick, 14 Mass. App. Ct. 1001, 1003 (1982). "We are thus concerned with distinct acts that constitute violations of different statutes ... and not a single act that may be an offense against two statutes." Id. at 1002. See Commonwealth v. King, 445 Mass. 217, 225-226 (2005), cert. denied, 546 U.S. 1216 (2006).
This case is factually distinct from Commonwealth v. Howze, 58 Mass. App. Ct. 147, 153 (2003), on which the defendant relies. In Howze, the court held that removing the victim's clothing was "bound up with and necessary to the act of penetration" and that these events were both "part of a continuous stream of conduct occurring within a short time frame and governed by a single criminal design." Id. There, the act of removing the clothing was a necessary prerequisite to accomplishing the subsequent rape. Id. This case, on the other hand, is similar to Commonwealth v. Mamay, 407 Mass. 412, 418-419 (1990), where the defendant's actions of putting his tongue in the victim's mouth, and his penis in her rectum, and then in her vagina, constituted three distinct offenses. In this case, the jury could have found that the defendant engaged in distinct acts of touching the victim's hips, her stomach, and her breasts, and that he digitally penetrated her vagina. The prosecutor highlighted without objection the defendant's different actions in her closing argument, stating that he "touched her breasts, her buttocks, her body and then put his finger into her vagina .... Those are crimes. Those are the crimes of aggravated rape[,] aggravated kidnapping, indecent assault and battery ...." Further, although neither the charging instrument nor the verdict slips delineated the specific touchings that supported each of the specific charges, the distinct touchings were described in the joint final pretrial memorandum. Also, when at sidebar the Commonwealth informed the court that it was arguing that three distinct touchings constituted the three separate offenses, the defendant did not request and the judge did not give instructions that the jury must consider independent acts in support of each charge. "The appropriate inquiry is whether there is any significant possibility that the jury may have based convictions of greater and lesser included offenses on the same act." Commonwealth v. Kelly, 470 Mass. 682, 701 (2015). Given the totality of the evidence and the judge's instructions that the jury must be convinced beyond a reasonable doubt of the defendant's guilt on each charge, there is not a significant possibility that the jury based multiple convictions on the same conduct and thus no substantial risk of a miscarriage of justice.
3. Expert testimony. The defendant lastly argues that the attending SANE, Nurse Powell, impermissibly testified to medical opinions beyond her expertise. Specifically, the defendant objected to Powell's testimony that bruises may take several days to appear and that the absence of vaginal injury is inconclusive of whether a victim has been raped. "A trial judge has wide discretion to qualify an expert witness and to decide whether the witness's testimony should be admitted." Commonwealth v. Javier, 481 Mass. 268, 285 (2019), quoting Commonwealth v. Frangipane, 433 Mass. 527, 533 (2001). We review for an abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). To assess whether a witness is qualified to provide an expert opinion, the judge must consider "whether the witness has sufficient education, training, experience and familiarity with the subject matter of the testimony" (citations and quotations omitted). Commonwealth v. Richardson, 423 Mass. 180, 183 (1996). While expert witnesses "must limit their opinions to matters within [their] field of expertise" (quotation omitted), Commonwealth v. Little, 453 Mass. 766, 771 (2009), a judge in her discretion may admit expert testimony where she determines such "specialized knowledge would be helpful to the jury" (quotation omitted). Commonwealth v. Holley, 476 Mass. 114, 125 (2016). See Mass. G. Evid. § 702 (2019).
In response to the prosecutor's question, "And in your experience how much time does it take for a bruise to appear on a body?" Powell responded that she frequently told patients treated for sexual assault to "continue to take photographs over the next few days because they may end up coming up with more areas of pain or more bruising or they may notice something over time to come out over the next few days." She also testified that, "[i]n this line of work we tell people very frequently it's normal to be normal .... [W]hen we complete this evidence collection it's very frequent in many more cases than not that there's no injury to visualize ...." The judge overruled the defendant's objections to each response and the defendant never moved to strike the testimony.
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Nurse Powell testified to her professional education, her twelve years' experience as a registered nurse, including seven years in an emergency room, and her specialized training and seven years' experience as a sexual assault nurse examiner. The joint final pretrial memorandum listed Powell as an expert witness who would be testifying to her examination of and instructions to the victim, and the process of collecting evidence. The judge did not abuse his discretion in permitting Powell's testimony regarding bruising as it was a subject well within her professional expertise as an emergency room nurse with over a decade's experience. Regarding the "normal to be normal" testimony, we conclude that the judge was also within his discretion to permit the opinion as within the field of Powell's established expertise and helpful to the jury, who may have believed that the absence of trauma to the genital area is inconsistent with rape. See Commonwealth v. Federico, 425 Mass. 844, 851 n.13, 852 (1997) ; Commonwealth v. Colon, 49 Mass. App. Ct. 289, 293 (2000). The risk that the jury may have misunderstood the relationship between evidence of trauma and rape was heightened in this case because the defendant argued that the encounter was consensual based on the lack of evidence of injury to the victim.
Alternatively, if admitting the testimony were error, we are confident that it was not prejudicial considering the totality of the evidence against the defendant, including his confession to the police. See Commonwealth v. Jaime, 433 Mass. 575, 577-578 (2001) ; Commonwealth v. Freeman, 430 Mass. 111, 118 (1999).
Conclusion. The judgment on indictment no. one is vacated, the verdict is set aside, and that indictment is to be dismissed. The remaining judgments are affirmed.
So ordered.
Vacated in Part; Affirmed in Part