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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Moran, 440
Present:
Indictments found and returned in the Superior Court
Department on
The cases were tried before Thomas E. Connolly, J.
After review by the
Michael J. Traft for the defendant.
Tracey A. Cusick, Assistant District Attorney, for
the Commonwealth.
GREANEY, J.
A jury in the Superior Court acquitted the
defendant on charges of aggravated rape and rape, and convicted him on charges
of indecent assault and battery on a person over the age of fourteen years and
assault and battery. The charges stemmed from accusations by the complainant
that the defendant, and his friend, Michael O'Connor, had sexually assaulted
her. The defendant and O'Connor were tried together, and the jury acquitted
O'Connor of all charges, which included charges of aggravated rape, indecent
assault and battery, and assault and battery.
Represented by new counsel, the defendant appealed, asserting that the judge
erred in precluding him from introducing a hospital record of the complainant
that predated the date of the alleged sexual assaults to impeach her testimony
and erred in his instructions to the jury on consent and assault and battery.
The Appeals Court, in an unpublished memorandum of decision and order entered
pursuant to its rule 1:28, vacated the judgment on the indictment charging
assault and battery, concluding that it could have been duplicative of the
indecent assault and battery conviction, and affirmed the indecent assault and
battery conviction. Commonwealth v. Moran,
The background of the case is as follows. After meeting the defendant at a
Boston night club in the early morning of November 10, 1996, the complainant
agreed, after the night club closed, to accompany him, his friend, O'Connor,
and her friend, whom we shall call Ann, to O'Connor's mother's house in
Braintree. At the time, the complainant was twenty-two years of age, and the
defendant and O'Connor were in their early twenties. The complainant had known
the defendant, her stepfather's cousin, and O'Connor for approximately eight to
ten years. Before arriving at the
The complainant's testimony differed significantly from that of the defendant's
with respect to what occurred at the
The complainant later awoke to "pain and pressure" in her vaginal and
anal area. She saw the defendant standing next to her and O'Connor at the end
of the bed. The complainant had been partially undressed. The defendant and
O'Connor had their fingers inside her vagina and anus, and also fondled her
breasts. The complainant was scared, pushed their hands away, rolled over and
covered herself with the bed covers. The defendant and O'Connor left the room
and the complainant fell back to sleep.
The complainant was again awakened to find the defendant on top of her with his
penis inside her vagina. She said "no" and tried to push him off. The
defendant stated, "What's the matter? Don't you like it?" The
defendant got off of the complainant, then tried to
put his penis in her mouth. She pushed him away. The defendant then leaned over
the complainant and began masturbating, eventually ejaculating on her neck. He
then left the room and showered. The complainant dressed and woke up Ann,
telling her that she wanted to leave and would take a taxicab. The defendant
and O'Connor insisted on driving the complainant home, and drove both women to
the complainant's mother's house in Weymouth, arriving at approximately 6 A.M.
Immediately on being dropped off, the complainant told Ann what had happened to
her. She also told her mother and sister about the incident. Her mother took her
to a nearby hospital, where she was later interviewed by a
The complainant's testimony was supported by the testimony of five fresh
complaint witnesses, namely Ann, the complainant's mother and sister, a nurse
from the hospital, and the detective. The nurse testified that her examination
of the complainant revealed swelling at the vaginal opening and a bruise on the
complainant's thumb and thigh. An employee of Cellmark
Diagnostics, a DNA testing laboratory, testified that the defendant could not
be excluded as the donor of DNA obtained from sperm fractions found in the
complainant's mouth (taken by, and preserved in, an oral swab), and on the
complainant's chest area (taken by, and preserved in, a swab). (No seminal
fluid or semen had been found on swabs of the complainant's vagina and anus.)
The defendant testified that on the ride to the
They went upstairs to a bedroom. The defendant moved some boxes off of one of
the twin beds, and then they laid down on the bed.
After some kissing, the defendant pushed the complainant's dress over her
breast area and fondled her breasts while she rubbed his crotch. The
complainant unzipped his pants and masturbated him. The defendant ejaculated on
her chest. After some conversation, the defendant went downstairs and went to
sleep on the couch.
The defendant later awoke to see the complainant putting on her boots. She said
she was going to take a taxicab home and the defendant said he would give her a
ride. The defendant and the complainant went into O'Connor's bedroom and woke
up O'Connor and Ann. The four of them got into O'Connor's vehicle and dropped
off the complainant and Ann at the complainant's mother's house. The defendant
and O'Connor returned to the
Later that morning the defendant spoke with the complainant's stepfather. The
defendant initially told him that nothing had happened with the complainant.
Later that day, after learning from the stepfather that semen had been found on
the complainant's chest, the defendant told his version of the incident to the
stepfather.
1. The complainant testified that approximately two weeks before the November
10 date of alleged sexual assaults (at the end of October or beginning of
November, 1996), she had been hospitalized for four to six days to have a cyst
removed from one of her ovaries by means of a laparoscopy. She testified that
she was then prescribed Percocet for pain. The
complainant also testified that the evening preceding the alleged sexual
assaults was the first evening she went out socially following her laparoscopy.
She further explained that, when she had awakened to find the defendant on top
of her with his penis inside her vagina, she was concerned because she
"had stitches in her belly button area," and because, following the
laparoscopy, she "wasn't supposed to have intercourse for two weeks."
During the cross- examination of the emergency room physician who had seen the
complainant at the hospital hours after the alleged sexual assaults, the
prosecutor elicited testimony that a laparoscopy could be performed through the
belly button.
Now becoming aware for the first time at trial of the complainant's alleged
laparoscopy, counsel for O'Connor subpoenaed the hospital's keeper of records
to obtain "all medical records" of the complainant. O'Connor's
counsel learned from an examination of the records, and in particular, the
operative report, that, during the relevant time period (namely on October 29,
1996), the complainant did not have a laparoscopy, but had "an entirely
different procedure" called a sigmoidoscopy.
O'Connor's counsel, joined by the defendant's trial counsel (who had not
examined the records, but relied on the representations of O'Connor's counsel),
sought to introduce the record, subject to sanitization so that only the fact
of the sigmoidoscopy would be placed before the jury
and then only for credibility purposes. The prosecutor objected, arguing that
O'Connor's counsel had failed to follow the protocol provided for by
Commonwealth v. Bishop, 416 Mass. 169, 179-183 (1993), as modified by
Commonwealth v. Fuller, 423 Mass. 216, 226 (1996) (Bishop-Fuller protocol), and
that she had previously sent to O'Connor's predecessor trial counsel and to the
defendant's trial counsel, the complainant's "OB/GYN
records from [another local medical facility]" that incorporated
"this laparoscopy . . . and all that."[1] O'Connor's counsel
argued that the Bishop-Fuller protocol applies only to privileged records. The
judge, however, expressed concern about "the way [the] record was
obtained" (apparently referring to disregard of the protocol), and further
noted the lack of expert testimony to explain the differences between a laparoscopy
and a sigmoidoscopy. After reviewing the relevant
records in camera, the judge said he would consider admitting the record of the
sigmoidoscopy only if the defendants offered an
accompanying medical expert, which neither defendant did.
In the circumstances of this case, which involved surgical or medical
procedures to which no claimed privileges apply, statutory or otherwise, there
is no basis to invoke the Bishop-Fuller protocol, and we reject the
Commonwealth's argument to the contrary.[2] We conclude that the judge
should have permitted defense counsel to introduce the record (in a sanitized
form) because credibility was central, and the record's relevance and probative
value far outweighed any potential prejudice to the complainant. In light of
the limited purpose for which the record was being
offered, and the language and contents of the record, explanation by a medical
expert of the diagnostic terms was not necessary. The testimony of the
complainant and the emergency room physician would have allowed the jury to
understand that a laparoscopy was a medical procedure that involved, in the
complainant's case, an incision to the belly button area. In contrast, the
October 29, 1996, operative report made clear that the procedure performed on
the complainant that day was a sigmoidoscopy, in
which "an Olympus flexible sigmoidoscope was
passed into the rectum" to observe her "[r]ectum,
sigmoid, [and] descending colon."[3] These were two distinct
procedures involving different bodily entry points. The fact that only the
former procedure, the laparoscopy, required the creation of an opening by way
of a surgical incision, would be readily
understandable to lay jurors from the trial testimony and the text of the
operative report. While further information from a medical expert concerning
the differences between these procedures may have aided the defense, such
testimony was not required to impeach the complainant's testimony that, in late
October, 1996, or early November, 1996, she underwent a laparoscopy that
involved stitches and received medical advice to refrain from sexual
intercourse. A lay person could also discern from the hospital report that a sigmoidoscopy, not a laparoscopy, was performed at the
pertinent time, and that no stitches to the belly button were involved.
The judge's erroneous exclusion of the record created a substantial risk of a
miscarriage of justice.
2. We agree with the Appeals Court that, because the judge did not instruct the
jury that convictions of both indecent assault and battery and assault and
battery had to be predicated on separate acts, the assault and battery
conviction would, in the circumstances here (although not in the ordinary
case), be duplicative of the indecent assault and battery conviction.
3. Because the issues concerning the propriety of the jury instructions on
consent may arise at any retrial, we address those issues.
(a) At trial, the defendant denied putting his fingers in the complainant's
vagina or anus, and denied inserting his penis into the complainant's vagina.
He testified that he had kissed the complainant, rubbed her crotch, touched her
breasts, and that she had masturbated him, all of which took place with her
actual consent. This testimony varied significantly from the complainant's, who
testified that the defendant had inserted his fingers or other hard object into
her vagina and anus, had touched her breasts, and had inserted his penis into
her vagina. In addition, as to the first two categories of sexual touching, the
complainant testified that she had pushed the defendant's hands away from her,
and then rolled over, covering herself. As to the
alleged rape, the complainant testified that she told the defendant,
"no," and that she tried to push him off of her. Considering this
evidence and the defendant's theory at trial that the complainant had actually
consented to sexual activity other than that described by her, we conclude that
the judge did not err in refusing to give a mistake of fact instruction as to
consent. Cf. Commonwealth v. Lopez, 433 Mass. 722, 732 (2001) (where
defendant's theory at trial was that victim actually consented to rape and
where evidence did not support mistake of fact as to consent instruction, no
error in judge's refusal to so instruct jury). As in rape cases, the elements
necessary for proving indecent assault and battery on a person over the age of
fourteen years do not require that the defendant intend that the touching
contemplated be without consent. Cf. id. at 727. But
see Commonwealth v. Simcock,
(b) Contrary to the defendant's contention, the judge did not err in
instructing on the relationship between intoxication and consent.[4] Both the Commonwealth and the defendant
introduced evidence that the complainant had consumed alcohol in the hours
preceding the alleged sexual assaults. There was also evidence that the
complainant had taken one Percocet, and that, during
the alleged sexual assaults, she felt "drugged" and unable to act. Her
testimony was that, on each occasion, she awoke to find the assaults underway,
i.e., the defendant had committed sexual acts on her starting when she was
asleep. The defendant testified that, before leaving the night club, it was
"pretty obvious" to him that the complainant had been drinking, that
her eyes were "glassy" and "bloodshot," and that she was
"swaying" when she spoke with him. There was a sufficient evidentiary
basis to warrant the instruction.
4. The judgment of conviction on the indictment charging indecent assault and
battery on a person over the age of fourteen years is reversed, the verdict is
set aside, and the case remanded for a new trial. On the indictment charging
assault and battery, the judgment of conviction and sentence imposed thereon
are vacated, the verdict is set aside, and the indictment is to be dismissed.
So ordered.
FOOTNOTES:
[1] Examination of the records that the prosecutor
furnished defense counsel before trial does not include any record that
references the October, 1996, sigmoidoscopy, or any
record that contains information that the complainant underwent a laparoscopy
in the weeks immediately preceding the alleged assaults. Prior to trial,
counsel for O'Connor had filed a motion, which was denied by a judge who was
not the trial judge, seeking "an opportunity to question the complainant
regarding . . . [t]he dates, locations, and names of physicians, psychologists,
rape counselors, or other care givers of any sources medical or psychological
who provided a diagnosis, treatment, care or counseling of the
complainant" because the Commonwealth "refused to disclose such
information even though it is non-privileged."
[2] The defendant concedes, as he must, that the
subpoena for the complainant's hospital records was "overbroad because it
potentially encompassed records that may [have been] protected by . . . privileges." Although no fault can
be attributed to the defendant's trial counsel (O'Connor's trial counsel served
the subpoena), we point out that defense counsel should have raised the issue
concerning the unknown laparoscopy with the judge when its apparent relevance
first arose so that the matter could have been more expeditiously addressed.
[3] While the operative report notes that the
complainant "may need a laparoscopy," the remaining records from the
complainant's October, 1996, admission, including a discharge summary, state
that a laparoscopy should only be done if the complainant's pain persisted. The
hospital records contain an entry under past medical history that states that
the complainant "had a laparoscopy in March 1996 showing mild
endometriosis . . . [and] a laparoscopy in January 1996 to rule out ectopic pregnancy."
[4] The judge instructed
the jury as follows:
"[I]f by sleep or intoxication or drunkardness
[sic] or stupefication or unconsciousness or
helplessness a person is incapable of consenting, an act of sexual intercourse
natural or unnatural as previously defined for you occurring with that person
during such incapacity is without the valid consent of the incapacitated
person. In such cases, the amount of force required may be only that sufficient
to effectuate the act of intercourse."