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13-P-666 Appeals Court
COMMONWEALTH vs. RICKY THOMAS.
No. 13-P-666.
Hampden. March 11, 2016. - May 26, 2016.
Present: Meade, Sullivan, & Massing, JJ.
Rape. Rape-Shield Statute. Evidence, Prior conviction,
Impeachment of credibility. Witness, Impeachment.
Practice, Criminal, Impeachment by prior conviction, New
trial.
Indictment found and returned in the Superior Court
Department on March 23, 2010.
The case was heard by Tina S. Page, J., and a motion for a
new trial, filed on September 29, 2014, was considered by her.
Joseph M. Kenneally for the defendant.
Deborah D. Ahlstrom, Assistant District Attorney, for the
Commonwealth.
MEADE, J. After a jury-waived trial, the defendant was
convicted of aggravated rape, and the judge found him not guilty
of kidnapping and assault with intent to rape. On appeal, he
claims that the judge erred when she excluded evidence of the
2
victim's prior convictions; his conviction for aggravated rape
was improper because there was no aggravating circumstance; and
the judge abused her discretion when she denied his motion for a
new trial without holding an evidentiary hearing. We affirm.
1. Background. The judge was entitled to find the
following facts. Before the incident at issue, a friend had
introduced the victim to the defendant, whom she knew as
"Steve," and the victim agreed to go with him to "hang out,
party, chill, [and] smoke" "crack" cocaine. Their plans for
that evening did not materialize. Several weeks later, the two
again met on the street. The defendant asked the victim if she
wanted to pick up where they left off, and also if she minded
going to his house in Holyoke. The victim agreed and "jumped in
[the defendant's] car."
The two travelled to an apartment complex "that had two
levels, one lower one, and one up a little hill and top level
apartments." The victim had never been there before, but she
identified a photograph of a "top left window" as "the window of
[the defendant's] room." On cross-examination, the victim made
it clear that she went to the defendant's apartment voluntarily
"to party," that is, "smoke, get high and chill." The two
entered the apartment, and the defendant directed the victim
down a long, dark hallway to a room at the end of the hall on
the left. The defendant went into a bathroom on the right, and
3
the victim walked into the indicated room. The room was not
furnished, but there were two mattresses on the floor, a
television on a stand, and "drug paraphernalia on the floor."
The victim sat on the corner of one of the mattresses, and
she could hear the defendant talking in the bathroom. She asked
if he had said something, but he replied that he was just
thinking out loud. The defendant then walked out of the
bathroom, "completely naked." At that point the victim had been
in the apartment "[a]bout three minutes at the most." The
defendant asked her to take her clothes off and put on a sweater
that he took from the closet. She took off her pants and
sweater and shoes, put on the sweater the defendant gave her and
sat back down on the bed.
The defendant sat next to her with his legs around her, and
when she turned to look at him, "he just grabbed [her] real
quick on [her] neck and started choking [her]." She could not
breathe and "everything was turning black." Struggling to
speak, she told him to let her go, that she would do anything,
and that he did not have to do that. Eventually, the defendant
released her. She was shocked and shaking uncontrollably
because she had been "attacked . . . out of nowhere." She asked
him repeatedly why he had done that to her and he said, "I want
you to suck my penis." He said that "[she] was going to suck
4
his penis the whole night, that he was going to freak the fuck
out of [her] until the next day."
The defendant grabbed the victim's head and started pushing
her, "shoving" her to perform oral sex on him. She pulled her
head back and said that she needed some water, but he grabbed
her head with both hands and forced his penis into her mouth
"more than once." She was afraid for her life, and "the second
time, when he yanked [her] head back," she said, "[W]e know the
same people" and started naming names, "just to get to him on
another level to break through that, finally actually like
getting some time for this man not to hurt [her]."
When she asked for water a second time, he said no, and
demanded oral sex for "three more minutes." However, after a
short period, she told him that she was about to throw up, and
he told her he would get the water, "but don't you dare move
from there."
As soon as the defendant turned his back and walked out of
the room, the victim looked around "to find a way out to escape
from him." She concluded that the "only way out was the door
where he walked through [to the kitchen to get the water] and
the window." She "got up, walked toward the window, and opened
it." The defendant came back into the room and grabbed her by
the sweater and pulled her back. The victim said, "No, you are
going to hurt me," and she yanked the sweater off "and . . .
5
fell off the window." In answering the question "[W]hat
happened when he was wrestling with you, what happened to you?"
the victim responded, "That is when I fell, I jumped out my
sweater and I fell . . . out the window" onto the ground below.
She identified a photograph of the window in the defendant's
apartment as "the window I jumped out the corner of." On cross-
examination, the victim clarified, "[I]f I could have jumped, I
would have calculated the way I fall, I wouldn't hurt myself
that bad. But because he grabbed me, I fell without calculating
so I hurt myself even more."
After she fell, the victim lost consciousness, but she
remembers that the defendant called from upstairs, saying "Come
back up . . . I am not going to hurt you." Instead, she crawled
across the parking lot toward another apartment house and
started "ringing every, every, every single doorbell." One man
answered his door and called the police.
Holyoke police Officer Kristin Shattuck spoke to the
victim, who was visibly shaken, upset, and crying, holding the
right side of her arm. She had "a contusion to the top of her
right hand, and she also had dried blood coming from the
hairline on the right side of her head going down to her temple
area." She was wearing only a T-shirt and socks, with no pants,
and it was cold, "about 29, 30 degrees that evening." The
6
victim told the officer that the defendant had forced her to
perform oral sex.
In the area beneath the defendant's window, the "dirt was
. . . freshly disturbed, being winter and everything. And there
was dried blood right on the foundation right below the window
where if somebody had fallen, they would have hit right on the
corner there. . . . There was a bent screen that was right
below the window, and that window was the only one in the
apartment complex . . . that was missing a screen."
The victim was hospitalized for more than a week. She
sustained a concussion, a broken wrist, two broken vertebrae, a
broken toe, and a cut on her leg from the screen. Hospital
records revealed the presence of cocaine in her system, and she
confirmed that she had smoked crack cocaine seven or eight hours
before she met the defendant that day. In her opinion, there
were no residual effects of the cocaine. "[T]hat is an effect
that lasts seconds, not hours." She identified the defendant as
the man who had assaulted her from a photographic array on the
night of the incident and again, several times, during the
trial.
2. Discussion. a. The rape-shield statute. The
defendant claims that the judge should have denied the
Commonwealth's motion in limine and permitted him to impeach the
victim with prior convictions for "prostitution-related
7
offenses," in order "to demonstrate how she ended up in the
defendant's apartment and her motive to falsely accuse him of
rape." He contends that excluding this evidence denied him due
process, including "the right to confront his accuser." We
disagree.
At the time the judge heard the motion, which was prior to
the defendant's election of a jury-waived trial, the defendant
argued, "I think the fact that we have to explain to the jurors
how this woman or why she ends up in this place. She is there
for the purpose of smoking with no money, with nothing, Your
Honor." He made no constitutional argument. The judge excluded
any use of the victim's prior convictions for sexual conduct for
a fee and being a common street walker, citing the rape-shield
statute, G. L. c. 233, § 21B.1 However, she ruled that the
defendant could impeach the victim with a conviction for using a
false name.2 See G. L. c. 233, § 21. On appeal, it is clear
that the defendant's purpose in offering the convictions was
1
In addition, as the prosecutor noted, the street walker
charge appears to have been dismissed. Other charges were
discussed, but the defendant did not note any objection to the
judge's ruling on those charges. The record contains neither a
copy of the victim's board of probation record, nor copies of
any docket sheets showing convictions.
2
The defendant did not, in fact, impeach the victim with
that conviction at trial. He did ask her, "You've been arrested
for assault and battery before?" The victim responded that she
had and that she pleaded guilty to the charge. This occurred
without objection despite the fact that no certified copy of the
conviction was offered.
8
not, as he concedes, "to demonstrate a general lack of
credibility . . . but to demonstrate how she ended up in the
defendant's apartment and her motive to falsely accuse him of
rape." His argument appears to be that the victim intended from
the beginning of the encounter to exchange sex for cocaine, and
that when she found herself on the ground under the defendant's
window, she "had a motive to provide the authorities with an
alternative explanation as to why she acted in the manner that
she did." The argument is without merit.
"A trial judge has broad discretion to determine the proper
scope of cross-examination. See Commonwealth v. Mountry, 463
Mass. 80, 86 (2012); Commonwealth v. Johnson, 431 Mass. 535, 538
(2000). 'If a defendant believes that the judge improperly
restrained his cross-examination of a witness, the defendant
must demonstrate that the judge abused [her] discretion and that
he was prejudiced by such restraint.' Commonwealth v. Sealy,
467 Mass. 617, 624 (2014), quoting Commonwealth v. Barnes, 399
Mass. 385, 393 (1987)." Commonwealth v. McGhee, 472 Mass. 405,
426 (2015). "When the prior conviction is of a sexual offense
and is being offered to impeach the [victim] in a sexual assault
case, the judge's consideration of the 'prejudicial effect' of
introducing the conviction should take into account the
important policies underlying the rape-shield statute. . . .
The judge should thus consider the potential that the jury may
9
misuse the conviction of a sexual offense as indicative of the
[victim's] consent, and the risk that the [victim] may be
subjected to needless humiliation." Commonwealth v. Harris, 443
Mass. 714, 727-728 (2005).
While evidence of a victim's prior sexual conduct may be
admissible to show her bias or motivation to lie, see
Commonwealth v. Houston, 430 Mass. 616, 622 (2000), nothing
about the facts here gives this victim such a motive. She was
forthcoming about her prior drug use and her intent to use crack
cocaine with the defendant on the night at issue. She agreed
that she went willingly with him and did not object to taking
some of her clothes off "to get comfortable." She also
indicated that she might have been willing to have sex with the
defendant had he not attacked her.3 There was no abuse of
discretion.4
In addition, this was not a consent defense case. Although
the defendant did not testify at trial, at the time that the
3
"When he was doing that, I jumped off my neck, my head,
and I said I need water. I'm going to throw up. I feel
nauseous. I'm so shocked, I'm shaking from head to bottom. I
have no control of my body. No control at all at this point
because the shock was so severe. It happened so unexpected, so
suddenly. It was the last thing that I would expect. It would
be a mutual thing for it to happen. It could have happened, but
it was uncalled for."
4
"Because the defendant raised no constitutional objection
at trial, we decline to address the constitutional argument he
made on appeal." Commonwealth v. Houston, supra at 619 n.4.
10
motion in limine was heard, his counsel denied that any sexual
activity at all had taken place between the two. Finally, there
is no reason to believe that this injured victim would have
believed that she would be arrested for prostitution or for any
other offense had she not claimed to have been raped; as a
result, she had no motive to lie about what had happened.
Contrast Commonwealth v. Joyce, 382 Mass. 222, 227 (1981).5
b. Aggravated rape. The defendant next claims that, while
the evidence may be sufficient to sustain a conviction for
"simple" rape, the Commonwealth failed to prove any aggravating
circumstance that would justify his conviction for aggravated
rape. In particular, he says, he was not convicted of any of
the felonies listed in G. L. c. 265, § 22(a), he was found not
guilty of kidnapping, and, he argues, the admittedly serious
injuries that the victim suffered were not inflicted by the
5
"In the Joyce case, the [victim] had been charged twice
with prostitution -- the second time when she had allegedly been
discovered undressed in a car engaged in sexual acts. According
to the account the defendant offered of the night of the alleged
rape, he and the [victim] were engaging in consensual sexual
intercourse in his car when he saw a police cruiser approaching
and told the [victim] to get dressed. In offering the prior
prostitution charges, the defendant 'intended to show that the
[victim], having been found in a similar situation on two prior
occasions, had been arrested on each occasion and charged with
prostitution.' Commonwealth v. Joyce, supra at 230. [The
court] consequently concluded that 'we cannot say that this
[prostitution charge] evidence has no rational tendency to prove
that the [victim] was motivated falsely to accuse the defendant
of rape by a desire to avoid further prosecution" (emphasis
added). Id." Commonwealth v. Houston, supra at 622-623.
11
defendant, "who neither intended nor anticipated" them.6 We
disagree.
"General Laws c. 265, § 22(a), . . . on its face, does not
require that the aggravating factor or factors be used to
facilitate the unlawful sexual intercourse. When a rape victim
sustains serious bodily injury, the pertinent statutory language
requires only that the intercourse have been 'committed with'
the acts that resulted in the victim's injuries. While the
language 'committed with,' of course, implies some logical nexus
between time and place, the words do not specifically require
that the physical force precede the rape or that the injuries be
inflicted to overcome a victim's will to resist." Commonwealth
v. McCourt, 438 Mass. 486, 492-493 (2003). In the present case,
the defendant, having raped the victim once, then threatened her
6
The Commonwealth claims that there were facts from which
the judge could have found kidnapping as an aggravating
circumstance. However, the evidence established that, at the
outset, the victim went willingly to the defendant's apartment.
The only theory argued by the Commonwealth at trial to support
the kidnapping charge appears in the prosecutor's opening
statement: "As far as the kidnapping and assault charges, while
they were in that posture when [the victim] asked him to go get
her that cup of water he threatened her and said, 'Don't you
dare move while I go get that cup of water.' And then he said
things to her like, 'I am going to freak the fuck out of you all
night.' Which is, again, why she was so terrified and why she
dove for the window when she had the brief moment." While those
facts might reasonably have persuaded a fact finder on the
kidnapping charge, here, because the judge found the defendant
not guilty of kidnapping, it is difficult to see how she could
have based her verdict on kidnapping as the circumstance
aggravating the rape charge.
12
and ordered her to remain where she was so that he could
continue to rape her throughout the night. Instead, she
attempted to escape through the second-floor window -- the only
avenue open to her -- and, when she did so, the defendant
grabbed her, as she described, precipitating a fall that did not
permit her to try to protect herself as she dropped to the
ground below.
In McCourt, the Supreme Judicial Court held that "[t]he
Legislature's clear purpose in creating the offense of
aggravated rape was to protect victims of violent sex offenders,
by punishing more severely perpetrators (i) who inflict serious
bodily injury on a victim, in addition to the bodily harm from
the act of rape itself" (emphasis supplied). Id. at 495. The
court further explained that "[t]he critical point is not
whether the aggravating acts served to compel a victim's
submission, but whether the rape victim sustained serious bodily
injuries . . . during the same criminal episode." Ibid.
Here, the victim sustained her considerable injuries during
an ongoing episode in which the defendant tried to rape her
repeatedly.7 It reasonably can be said that his actions caused
her injuries, especially those actions at the window that
7
While the defendant claims that his punishment should not
be enhanced because he lived on the second floor, in fact, that
second-floor location facilitated his efforts to prevent the
victim's escape.
13
facilitated and exacerbated her fall. Those actions and the
accompanying threats were the proximate cause of the victim's
injuries. Compare Commonwealth v. Wade, 428 Mass. 147, 151
(1998) ("the judge made clear that the Commonwealth had to prove
that the act that was the proximate cause of death was an act
that in the natural and continuing sequence of events produce[d]
the death, and without which, the death would not have
occurred") (citation omitted).
The question "whether there is an adequate nexus between
the unlawful sexual intercourse and the serious bodily injury
. . . is a task jurors commonly are called to make. The jury
are entitled to consider the entire sequence of events in making
their determination whether the aggravating acts occurred in the
course of the rape, or whether, because of intervening time or
events, the rape and the aggravating acts cannot be viewed as
one continuous course of criminal conduct directed at the
victim." Commonwealth v. McCourt, supra at 496. Here, the
judge, as the fact finder, clearly was persuaded that one
continuous course of conduct produced the victim's serious
injuries. We will not disturb that finding where it is fully
supported by the evidence.
c. The motion for new trial. Finally, the defendant
claims that the judge improperly denied without a hearing his
motion for a new trial based on a claim that counsel was
14
ineffective for failing to call a witness to impeach the victim.
We disagree. "The decision to hold an evidentiary hearing on a
motion for a new trial is 'left largely to the sound discretion
of the judge.'" Commonwealth v. Vaughn, 471 Mass. 398, 404
(2015), quoting from Commonwealth v. Stewart, 383 Mass. 253, 257
(1981). "Indeed, [Mass.R.Crim.P. 30(c)(3), as appearing in 435
Mass. 1502 (2001),] encourages the denial of a motion for a new
trial on the papers, without hearing, where no substantial issue
is raised." Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394
(2012).
We review the denial of a motion for a new trial for "'a
significant error of law or other abuse of discretion,'
Commonwealth v. Forte, 469 Mass. 469, 488 (2014), quoting from
Commonwealth v. Grace, 397 Mass. 303, 307 (1986), granting
'special deference' to the rulings of a motion judge who, like
the judge here, also presided at trial." Commonwealth v.
Bonnett, 472 Mass. 827, 833 (2015). "'In general, failure to
impeach a witness does not prejudice the defendant or constitute
ineffective assistance.' Commonwealth v. Bart B., 424 Mass. 911,
916 (1997). 'Even on the more favorable standard of review
under [G. L. c. 278,] § 33E [which is not applicable here], a
claim of ineffective assistance based on failure to use
particular impeachment methods is difficult to establish.
Impeachment of a witness is, by its very nature, fraught with a
15
host of strategic considerations, to which we will, even on
§ 33E review, still show deference. . . . Furthermore, absent
counsel's failure to pursue some obviously powerful form of
impeachment available at trial, it is speculative to conclude
that a different approach to impeachment would likely have
affected the jury's conclusion.' (Footnote omitted.)
Commonwealth v. Fisher, 433 Mass. 340, 357 (2001) (counsel not
ineffective in failing to impeach witness with certain prior
inconsistent statements where witness was extensively impeached
by other means)." Commonwealth v. Hudson, 446 Mass. 709, 715
(2006).
Here, in support of his motion for new trial, the defendant
claimed that trial counsel was ineffective for failing to call
James Bradley as a witness. According to Bradley's affidavit,
submitted in support of the defendant's motion, he would have
testified to the victim's prior inconsistent statements,
specifically that she had been "robbing a trick" and then jumped
out of the window, thinking the defendant's apartment was on the
first floor. Bradley also stated that the victim did not say
anything about being attacked or sexually assaulted.
The defendant submitted a letter from trial counsel, who
stated that he did not call Bradley because he understood that
Bradley would have testified only that someone else had given
him the information, and, further, that Bradley "had a long
16
criminal record and was in the middle of his own trial in the
Superior Court."
The motion judge, who was also the trial judge, concluded,
"There is no substantial issue because even if I credit
Bradley's affidavit as to what his testimony would have been,
trial counsel did not provide ineffective assistance by failing
to call him as a witness." The judge did "not credit the
defendant's claim that, during the trial he disagreed with trial
counsel's decision not to call Bradley . . . [and e]ven if the
defendant disagreed with trial counsel's decision, that decision
was not manifestly unreasonable. . . ." The judge further noted
that Bradley's statement would have been admissible only to
impeach the victim and also that trial counsel had thoroughly
cross-examined the victim and impeached her with her own
inconsistencies. Any further impeachment would have been
cumulative. In the judge's view, trial counsel's strategy was
"manifestly reasonable," given Bradley's prior record, combined
with the fact that no stolen goods were found on the victim or
in the area. "Moreover, Bradley's testimony would not have been
plausible because the victim jumped out of the window in
January, almost naked, rather than leaving the defendant's
apartment through the door with her clothes on at an opportune
time." As such, it was not an abuse of discretion for the judge
17
to determine that motion failed to raise a substantial issue, or
to deny the motion itself.
Judgment affirmed.
Order denying motion for new
trial affirmed.