Opinion
10-P-1024
05-16-2012
COMMONWEALTH v. PERDITE SCOTT.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Perdite Scott, was convicted of rape (second offense), assault with intent to rape, and assault and battery. On appeal, he argues that (1) the jury instructions failed to convey the essential elements of the charges against him; (2) the trial judge failed to give a specific unanimity instruction, and the convictions on the lesser charges are potentially duplicative of the rape conviction; (3) the judge failed to question prospective jurors on racial bias, as required in interracial rape cases; (4) the first complaint doctrine was violated; and (5) the trial judge abused his discretion in denying a motion for severance. We affirm the convictions of rape (second offense) and assault and battery, but reverse the assault with intent to rape conviction. Jury instructions. As the defendant did not object to the instructions at trial, we must consider whether the charge as a whole gave rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Cotto, 69 Mass. App. Ct. 589, 594 (2007), and cases cited. As to the rape charge, the judge discussed force in his supplemental instruction on lack of consent. Moreover, in light of the verdicts returned, the jury clearly believed the testimony of the victim and not that of the defendant. See Commonwealth v. Randolph, 438 Mass. 290, 299-301 (2002). 'No reasonable view of the evidence would permit the jury to find' that the defendant engaged in sexual intercourse with the victim without her consent, but not by force. Commonwealth v. Costa, 65 Mass. App. Ct. 227, 235 (2005). On assault with intent to rape, the judge sufficiently conveyed the element of specific intent. See Commonwealth v. Murray, 51 Mass. App. Ct. 57, 63 (2001). And although he did not properly instruct on the element of assault, the judge stated that the Commonwealth needed to prove that the defendant 'applied physical force,' effectively making battery an element of the offense for purposes of this case. Because '[e]very battery includes an assault,' Commonwealth v. Burke, 390 Mass. 480, 482 (1983), the erroneous instruction 'granted the defendant more protection than the law afforded him.' Commonwealth v. Roderick, 429 Mass. 271, 278 (1999). As to assault and battery, excuse was not a live issue at trial, and in light of the credibility assessments clearly made by the jury, see Randolph, 438 Mass. at 300-301, there was ample evidence that the force applied by the defendant to the victim was both harmful and offensive. While the instructions could have been clearer and more explicit, we conclude that they did not give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Fortuna, 80 Mass. App. Ct. 45, 54 (2011).
For prior proceedings in this matter, see Commonwealth v. Scott, 52 Mass. App. Ct. 486 (2001); Commonwealth v. Scott, 57 Mass. App. Ct. 36 (2003), S. C., 440 Mass. 642 (2004).
A charge of indecent assault and battery involving the same victim resulted in a hung jury, after which the Commonwealth nol prossed that charge. The defendant was also acquitted of assault with intent to rape and assault and battery against another victim.
Duplicative convictions. As the issue of duplicative convictions was not raised at trial, we review this issue to determine whether there has been a substantial risk of miscarriage of justice. More particularly, we evaluate the evidence, and the instructions, to determine the risk that the defendant may have been convicted of cognate offenses based on a single act. See Commonwealth v. Berrios, 71 Mass. App. Ct. 750, 754-755 (2008). Convictions of multiple cognate offenses not based on separate and distinct acts violate double jeopardy principles. See Commonwealth v. Vick, 454 Mass. 418, 431 (2009).
Two offenses are cognates when one is a lesser included offense of the other. See Commonwealth v. Vick, 454 Mass. 418, 435 n.17 (2009), quoting from Commonwealth v. Pileeki, 62 Mass. App. Ct. 505, 515 n.1 (2004) (Brown, J., concurring in the result).
Assault and battery is a lesser included offense of rape, see Commonwealth v. Richmond, 379 Mass. 557, 562 (1980); Berrios, supra at 753, but we conclude that there was ample evidence of separate acts, particularly the smacking and choking of the victim prior to the rape, and adequate argument by the Commonwealth regarding those separate acts, to avoid a substantial risk of a miscarriage of justice.
As for the assault with intent to rape, the Commonwealth argues only that it is not a lesser included offense. As we have previously held that it is, albeit without parsing the elements of the two crimes, we conclude that this conviction must be vacated. See Commonwealth v. Kruah, 47 Mass. App. Ct. 341, 347 (1999) ('[t]he crime of assault with intent to rape is a lesser included offense of rape'); Commonwealth v. Westbrook, 58 Mass. App. Ct. 692, 700 (2003) ('[b]y finding the defendant guilty of the lesser included offense of assault with intent to rape, it is clear that the jury did not believe that the defendant had penetrated the victim').
Specific unanimity. A specific unanimity instruction, which was not requested here, was not required because the convictions related to a 'single episode,' and the jury 'need not agree as to every detail concerning how the crime was committed.' Commonwealth v. Santos, 440 Mass. 281, 285 (2003).
Voir dire as to race. Upon the defendant's request, the trial judge in an interracial rape case is obliged to conduct an individual voir dire of prospective jurors regarding race. See Commonwealth v. DiRusso, 60 Mass. App. Ct. 235, 237 (2003), citing Commonwealth v. Sanders, 383 Mass. 637, 640-641 (1981). This questioning 'is not automatic' and should be conducted only when the defendant chooses to introduce 'potentially volatile subjects' like race into the voir dire. DiRusso, supra at 238 & n.1. Here the defendant did file a motion in limine for a voir dire regarding race on the day of trial, but the trial judge apparently did not see it before conducting jury selection, and the defendant did not bring it to his attention. Under the circumstances, we conclude that the defendant did not make an effective and timely request for individual voir dire. In addition, the judge questioned potential jurors about issues of race whenever the defendant so requested. We therefore discern no prejudice to the defendant.
First complaint. The victim testified that she told a friend from Maine what had happened soon after the rape. Because that friend did not testify, this reference technically violated the first complaint doctrine. See Commonwealth v. Stuckich, 450 Mass. 449, 456-457 (2008). However, the defendant did not object, and this was a fleeting reference that was not mentioned again during the testimony or in closing. It did not substantially bolster the victim's credibility and therefore did not give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 850-852 (2010).
The defendant's other claims relating to first complaint are unmeritorious for substantially the reasons stated in the Commonwealth's brief at pages 44 to 49.
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Severance. The defendant moved to sever the indictments relating to the two victims on the day of trial. The trial judge noted that there could have been tactical reasons for this timing, given that one victim had traveled from Canada to testify and would only be available for a limited time. The two criminal episodes occurred in approximately the same place, a matter of weeks apart, and there were many similarities in the manner in which the victims were attacked. Under the circumstances, the judge did not abuse his discretion in denying the motion to sever. See Commonwealth v. Zemtsov, 443 Mass. 36, 44-45 (2004). Moreover, the defendant was acquitted of all charges relating to one victim. He points only to generalized concerns that the jury viewed him less favorably because of the additional charges, and therefore falls short of the 'heavy burden of demonstrating prejudice from the joinder that was so compelling as to have prevented him from obtaining a fair trial.' Id. at 45.
Conclusion. On the indictment charging assault with intent to commit rape, the judgment is vacated, the verdict is set aside, and the indictment is dismissed. On the indictments charging rape (second offense) and assault and battery, the judgments are affirmed.
So ordered.
By the Court (Kantrowitz, Kafker & Meade, JJ.),