See Bishop, supra at 174 n. 2 (parties proceeded on the assumption that the records were privileged);Commonwealth v. Oliveira, 431 Mass. 609, 616 (2000) (same). See alsoCommonwealth v. Ramos, 47 Mass. App. Ct. 792, 795-796 (1999) (court reviewed a Bishop determination despite a lack of written findings);Commonwealth v. Zane Z., 51 Mass. App. Ct. 135, 143-145 (2001) (judge did not reduce stage one findings to writing, but no reason to remand for written findings without some showing of what might be accomplished). The motion judge's written decision combined the privilege determination stage with the relevancy determination stage.
It is entirely possible that the criminal act relied upon by the jury with respect to both verdicts was the rape. See Commonwealth v. Zane Z., 51 Mass. App. Ct. 135, 141 (2001). Contrast Commonwealth v. Black, 50 Mass. App. Ct. 477, 479 (2000) (reversal not required where manner of presentation of evidence and instructions overall adequately i dentified separate conduct on which cognate counts were based).
In her opening statement and closing argument, the prosecutor did not rely upon any particular instances of trafficking, but, rather, discussed evidence of the codefendantsโ general pattern of behavior. See Commonwealth v. Zane Z., 51 Mass. App. Ct. 135, 139-140, 743 N.E.2d 867 (2001) (analyzing Commonwealth's opening and closing statements to determine whether specific unanimity instruction was warranted). Indeed, the prosecutor noted on multiple occasions that this case was about an unlawful "business" that was "selling sex," thus underscoring that its theory turned on a general scheme to traffic women, rather than on distinct acts of trafficking.
Id. See Commonwealth v. Zane Z., 51 Mass. App. Ct. 135, 138, 743 N.E.2d 867 (2001). Several Federal Courts of Appeals have required specific unanimity instructions where there exists a "genuine risk," United States v. Sayan, 968 F.2d 55, 65 (D.C. Cir. 1992), or "genuine danger," United States v. Schiff, 801 F.2d 108, 114โ115 (2d Cir. 1986), cert. denied, 480 U.S. 945, 107 S.Ct. 1603, 94 L.Ed.2d 789 (1987), of jury confusion.
The defendant was convicted by a Superior Court jury of two counts of indecent assault and battery on a child, G. L. c. 265, ยง 13B. On appeal, he contends that the convictions may be duplicative because the trial judge failed to instruct the jury that the convictions must be based on separate and distinct acts, see Commonwealth v. Zane Z., 51 Mass. App. Ct. 135, 141 (2001); that the conviction on count one (indecent assault and battery on a child, as a lesser included offense of statutory rape), may not have been based on the same act for which he was indicted, see Commonwealth v. Barbosa, 421 Mass. 547, 554 (1995); and that G. L. c. 265, ยง 13B, is unconstitutionally vague, as applied, because it permitted conviction for touching the chest of a five or six year old girl, without providing fair notice that such conduct was criminal. Substantially for the reasons set forth in the Commonwealth's brief at pages 15 through 33, we affirm.
Jurors, of course, are free to believe or disbelieve the testimony of each witness in whole or in part. See Commonwealth v. Hawkesworth, 405 Mass. 664, 674-675 (1989); Commonwealth v. Zane Z., 51 Mass. App. Ct. 135, 140 (2001). At the same time, however, "a jury cannot properly be permitted to wrest part from a clear and consistent context so as to attribute to a witness a statement which he did not make."
His size was obvious during the trial. Commonwealth v. Zone Z., 51 Mass. App. Ct. 135, 147-148 (2001). The victim repeatedly informed the emergency room doctor who treated her the morning following the rape that "the assailant would kill me if I told what he looked like."
It has become clear, as our common law has developed, that the heightened Fuller standard of relevance applies to all cases in which the defendant seeks privileged treatment records. See Commonwealth v. Oliveira, 431 Mass. 609, 616-617 (2000), S.C., 438 Mass. 325 (2002); Commonwealth v. Zane Z., 51 Mass. App. Ct. 135, 142-143 (2001). While we will not endorse "unrestrained foray[s] into confidential records," Commonwealth v. Bishop, supra at 182, in some situations a review, though certainly an additional intrusion into the privacy of a complaining witness, is necessary to preserve the standards of justice and fairness.
Commonwealthv. Zane Z., 51 Mass.App.Ct. 135, 140 (2001). The defendant also contends that the denial of his motion for a directed verdict at the close of the Commonwealth's case was clear error because of a statement made by the judge.
He was "free to believe all or any part of the testimony [he] heard at trial." Commonwealth v. Zane Z., 51 Mass. App. Ct. 135, 140 (2001). The defendant also contends that the denial of his motion for a directed verdict at the close of the Commonwealth's case was clear error because of a statement made by the judge.