Commonwealth v. Keevan
Commonwealth v. Keevan
Opinion of the Court
The defendant was convicted of aggravated rape, kidnapping, and unarmed robbery.
Sighting a police cruiser, the defendant drove to a second location in front of the Children’s Museum. There, the two men searched the trunk of the automobile unsuccessfully for money. They then entered the automobile. Cobb put his hand over the victim’s mouth and, with the defendant’s help, forced her to the back seat. The defendant said that he would shoot her in the face if she made noise. The victims saw no gun at this time. The defendant drove the automobile while Cobb forced the victim to lie face down in the back seat. Cobb demanded that the victim perform fellatio on him; she complied.
They drove for about two hours, ultimately arriving at a boat dock. The defendant went to a boat, lit its lights, and returned to the automobile, armed with what appeared to be a gun. The defendant and Cobb forced the victim onto the boat. While Cobb waited on deck, the defendant took the victim into the cabin and “told” her to have sex with him. She refused but then engaged in “regular” sexual intercourse with the defendant.
The two men returned the victim to the automobile. Again, the defendant drove, this time to a wooded area. Cobb led the victim from the automobile, saying that the defendant wanted him to take her into the woods so that the defendant, who would follow, could photograph them engaged in sexual acts. The victim never saw the defendant or a camera, but Cobb said that the defendant wanted a picture of them engaged in anal intercourse. She refused. Cobb then asked whether she would prefer to die, and she said, “I’d rather die.” Cobb said they would pretend to have anal sex. They did so.
Detective Michael Giacoppo, a member of the Cambridge police sexual assault unit, used the registration number given to him by the victim to trace the automobile to the defendant’s employer in Portsmouth, New Hampshire. By telephone, Detective Giacoppo asked the defendant to come to Cambridge for an interview; without asking why, the defendant agreed to come. The detective then obtained an arrest warrant and so advised police officials of Dover, New Hampshire, where the defendant lived. An officer of the Dover police department was detailed to watch the defendant’s home. When the defendant saw the officer’s cruiser, he fled into a nearby wooded area. Police reinforcements were called, and the defendant was arrested at gunpoint.
The defendant made a statement in which he admitted that, on the night in question, he and Cobb had engaged a Combat Zone prostitute to perform oral sex. But he claimed that she voluntarily rode in the automobile because “she wanted to . . . have further sex with them” at no charge. He admitted that he had sexual intercourse with the woman on a boat, but he did not admit to forcing himself on her. He claimed that, after leaving the boat, he drove Cobb and the woman to a house in Lexington; Cobb and the woman went inside; when the two emerged, the woman was upset; and, before she parted company with the two men, she had voluntarily returned the $50 which he claimed he had paid her.
The defendant testified in his own behalf.
1. Unarmed robbery. The defendant argues that, in the absence of a hearsay statement which should not have been admitted, there was insufficient evidence as matter of law to link him to the commission of this crime. He asks that a finding of not guilty be entered.
The evidence tying the defendant to the robbery of the victim was her testimony that, before Cobb took her money, he told her that the defendant wanted him to take it.
The victim testified that, when she and Cobb and Keevan were together, Keevan “gave the orders.” Keevan was nor far
The Commonwealth does not dispute the characterization of Cobb’s statement as hearsay. It points out, however, that no objection was lodged.
The Commonwealth concedes that the requested instruction is correct as a general proposition of law, Commonwealth v. Goldenberg, 338 Mass. 377, 384 (1959); but see Commonwealth v. Helfant, 398 Mass. 214, 221 n.5 (1986) (questioning the vitality of Goldenberg, supra). The Commonwealth does not dispute that the defendant was entitled to the instuction; it argues instead that the instructions, as given, effectively conveyed the substance of the instruction sought. The judge instructed the jury that, to constitute rape, intercourse must be accomplished against the victim’s will and by force or threat of bodily harm.
We consider first whether the defendant adequately preserved his rights for appellate review. The judge stated at a conference, prior to instructing the jury, that he would not give the defendant’s requested instruction concerning consent obtained by fraud because the prosecution had not “asked or suggested consent obtained by fraud.” Despite the irrelevance of the judge’s comment, the defendant did not explain why the instruction was sought. Rule 24(b) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 895 (1979), explicitly states that a party must specify “the matter to which he objects and the grounds of his objection.” See Commonwealth v. McDuf-fee, 379 Mass. 353 (1979). The purpose of this requirement in rule 24 (b) is to bring alleged errors or omissions to the attention of the judge at a time when they still can be corrected, and thereby avoid the necessity of a new trial to correct an error which could have been eliminated before the jury began their deliberations. See generally Henderson v. Kibbe, 431 U.S. 145, 154 (1977); 2 C.A. Wright, Federal Practice and Procedure § 484, at 698 (2d ed. 1982) (analogous Federal rule).
Consequently, we review only to determine whether such error as there may have been “was of a type and seriousness which should lead us to reverse in the absence of a proper exception. The test is whether there is a substantial risk of a miscarriage of justice.” Commonwealth v. Freeman, supra at 563-564. In the circumstances of this case, where the jury were correctly instructed on the statutory elements of rape, where they heard argument from defense counsel that consensual intercourse is not rape, even if consent is obtained by fraud, and where the jury, by convicting the defendant of kidnapping, impliedly found that the victim did not consent even to her presence at the scene of the alleged rape, there is little doubt the jury found that intercourse was forced upon the victim, against her will and without consent, fraudulently ob
The defendant also maintains that the judge erred in denying his motion that the Commonwealth be required to elect which act of intercourse it was relying on to prove the offense of rape. There was no error. “Where a crime can be committed in any one of several ways, an indictment properly charges its commission in all those ways .... Then the defendant should be convicted if it is proved that he committed the crime in any of those ways.” Commonwealth v. Dowe, 315 Mass. 217, 219-220 (1943). Accord Commonwealth v. Sullivan, 354 Mass. 598, 615 (1968), cert. denied, 393 U.S. 1056 (1969) (degrees of murder).
On appeal, the defendant now asserts that, because his motion to require an election was denied and because the judge did not instruct the jury on the requirement of unanimity, the conviction of aggravated rape must be reversed. The judge’s ruling denying the motion was correct; thus there is no merit to that contention. As to the failure of the judge to instruct on the need for unanimity, the defendant rejected the judge’s suggested instruction on this issue. Moreover, experienced defense counsel did not request a unanimity instruction and did not object to its omission after the judge concluded the jury instructions. See Mass. R. Crim. P. 24(b). Therefore, the inquiry of this court is limited to determining whether this omission presents a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
In cases in which the indictment alleges an offense, but the evidence shows multiple acts of allegedly criminal conduct, we have addressed the effect of giving only a general unanimity instruction and omitting a specific unanimity instruction. See Commonwealth v. Comtois, 399 Mass. 668, 675-677 (1987). See also Commonwealth v. Lemar, 22 Mass. App. Ct. 170 (1986). A general unanimity instruction informs the jury that the verdict must be unanimous, whereas a specific unanimity
With regard to the omission of a general unanimity instruction, the record reflects general unanimity on the conviction of aggravated rape. The transcript reveals that, when the jury returned the verdicts, the jurors affirmed the verdicts.
In considering the omission of a specific unanimity instruction, we have determined that there is no substantial risk of a miscarriage of justice if the evidence satisfies each element of the statute and is sufficient to defeat a motion for a required finding of not guilty. Commonwealth v. Comtois, supra at 676-677.
3. Cobb’s “confession.” Detective Giacoppo was permitted to testify to the substance of what the victim told him on September 6, 1984. On cross-examination, defense counsel sought to impeach this testimony by asking, “In fact, you don’t have any mention of this interview with [the victim] on September 6th in your police report, do you, officer?” The detective replied, “My police report ends on September 5th at Mr. Cobb’s confession.” Defense counsel immediately requested a mistrial but never moved to strike the statement and never sought cura
Relying on Bruton v. United States, 391 U.S. 123 (1968), the defendant argues that reversal of all the convictions is compelled because his constitutional rights to confront the witnesses against him
We are persuaded that Bruton is not implicated by the circumstances of this case. Bruton teaches that, where a nontes-tifying codefendant’s confession inculpates another defendant,
The defendant argues, however, that an inculpatory connection “may be supplied by the content of the statement taken in connection with other evidence in the case” (emphasis in original). Commonwealth v. LeBlanc, 364 Mass. 1, 8 (1973). He observes that, at trial, he did not dispute his presence during the actions which the Commonwealth calls a joint venture with Cobb to kidnap, rob, and rape the victim; instead, he based his defense on his own testimony that the victim consented to her travels and sexual encounters with Cobb and himself and his denial of the facts of kidnapping and of robbery. Viewed in the light cast by all the evidence, the defendant argues, the revelation of the bare fact that “Cobb confessed” carried with it an implicit declaration by Cobb that he, too, was guilty. From the defendant’s perspective, the likelihood that the jury would draw a broadly inculpatory inference was enhanced by the detective’s implication that Cobb’s confession was damning enough to obviate the need to write down what the victim had to say about Keevan.
While we have recognized that “a statement which does not plainly refer to a codefendant may nevertheless be inculpatory if the codefendant could easily be connected with the statement,” Commonwealth v. Cifizzari, 397 Mass. 560, 573 (1986), referring to LeBlanc, supra, consideration of the other
In the circumstances of this case, the risks of contextual inculpation cited by the defendant are counterbalanced by the complete lack of reference to Keevan as a participant of any kind in anything “confessed” by Cobb. In the circumstances of this case, speculation would be required before harm could befall a defendant. Consequently, we do not think that the logic of Bruton requires reversal.
In any event, if there was a Bruton-type error, it was harmless beyond a reasonable doubt because we do not believe it possible that the challenged statement “influenced the jury adversely to [the defendant].” Chapman v. California, 386 U.S. 18, 23-24 (1967). See Commonwealth v. Marini, 375 Mass. 510, 520-521 (1978). “[T]he jury would not have found the Commonwealth’s case significantly less persuasive if [Cobb’s confession] had been handled with more circumspection.” LeBlanc, supra at 9-10. The defendant’s defenses were more devastated
Judgments affirmed.
A codefendant, Charles L. Cobb, was charged with the same crimes, but his trial was severed on motion of the defendant.
Cobb did not testify at the defendant’s trial.
According to the victim, the robbery occurred after Cobb had walked the victim a distance three or four minutes away from the defendant’s automobile, and after Cobb had forced her to have intercourse:
The prosecutor: “After [Cobb forced you to have inter-
course], what next occurred?”
The witness:
“I put my pants back on. Then he told me that Keevan also wanted him to take my money, so I gave him my money.”
After the victim testified on direct examination, see note 3, supra, defense counsel neither objected to the question nor moved to strike the answer. Commonwealth v. Borans, 379 Mass. 117, 145 n.26 (1979). When arguing the defendant’s motion for a required finding of not guilty, counsel made no mention of the hearsay declaration.
The defendant’s appellate counsel seeks to raise, in her reply brief, the claim of ineffective assistance of trial counsel because of his failure to object. This argument is not timely; as it cannot be raised for the first time in the reply brief. Leigh v. Board of Registration in Nursing, 395 Mass. 670, 684 n.14 (1985).
Thus, even if we were to assume error in the refusal of the judge to give the requested instruction, the conviction should stand because the record discloses no substantial risk of a miscarriage of justice. The author of this opinion, joined by Justices Lynch and O’Connor, disagrees that there was no substantial risk of a miscarriage of justice. The reasons are as follows. The court has stated that “[rjape is the carnal knowledge of any woman above the age of consent against her will . . . : its essence is the felonious and violent penetration of the person of the female by the defendant.” Commonwealth v. McCan, 277 Mass. 199, 203 (1931). “Under the indictment charging rape, the prosecution has an affirmative duty to prove beyond a reasonable doubt that sexual intercourse was performed against the will of the victim and without consent.” Commonwealth v. Chretien, 383 Mass. 123, 135 (1981). The judge in the case at bar omitted all reference to consent. The jury, as instructed, might reasonably have speculated, contrary to law, that the defendant still would be guilty of rape even if they found that the victim’s “will” had been overborne by her reliance on Cobb’s fraudulent representations. Thus, the instructions were not “ ‘so framed that [the] jury [could] not draw the wrong conclusion therefrom.’ Miller v. United States, 120 F.2d 968, 972 (10th Cir. [1941]).” Commonwealth v. Carson, 349 Mass. 430, 435 (1965). Because the issue was raised fairly by the testimony of both the defendant and the victim, and lack of consent is a fact the prosecution must prove, and because submitting a case to a jury without informing the jurors of the claimed defense is prejudicial, it follows, in the author’s view, that reversal is required. To view the fraud instruction as dispensible is to suggest by analogy, that so long as a charge does not misstate the statutory elements of a crime, no instruction need be given on relevant aspects of any affirmative defense. Surely, this is not the law of this Commonwealth. See, e.g., Connolly v. Commonwealth, 377 Mass. 527, 529-531 (1979) (where murder is charged, if self-defense is in issue, instructions are required), and cases cited.
The judge suggested to the defendant’s attorney that the jury could “be instructed that if it’s natural [sexual intercourse] all twelve jurors have to agree, or if it’s unnatural [sexual intercourse] all twelve jurors have to agree.” The defendant on appeal argues that this proposal was insufficient because there were two alleged instances of “natural” rape. It is obvious, however, that, had the defendant requested the judge to clarify that point, these instructions would have been sufficient, and the judge would have granted them.
In addition, at the outset of the judge’s charge, he emphasized that the decision must be arrived at by “group discussion,” and that the jurors “should work together as a group sorting out the facts that you find.”
The court in Lemar, supra at 173, also noted that, in some instances, the defense may prefer the omission of a specific unanimity instruction because the jury may have believed that unanimity as to all the incidents was necessary to support a verdict of guilty and not merely unanimity as to one incident, “thereby somewhat improving the chances of an acquittal.”
The Sixth Amendment to the Constitution of the United States provides in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” This Federal stricture is binding on the Commonwealth. Pointer v. Texas, 380 U.S. 400, 406 (1965). The defendant also claims protection under art. 12 of the Massachusetts Declaration of Rights, which likewise guarantees a defendant the right “to meet the witnesses against him face to face.” However, the defendant does not maintain that the protections afforded by art. 12 are more extensive than those provided by the Sixth Amendment, or that our analysis should differ depending on the constitutional source of the protection claimed. Thus, we deem the point of State law to have been waived. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 919 (1975). Our decision turns solely on considerations of Federal constitutional law.
The defendant also argues that, because Detective Giacoppo was the Commonwealth’s chief investigating officer, with permission as such to sit at the prosecution table during trial, his acts on the witness stand are attributable to the Commonwealth. Because the defendant finds it incredible that an officer of Giacoppo’s experience could have testified to the fact of Cobb’s confession in ignorance of its inadmissibility, or that his failure to guard his tongue was merely negligent, the defendant characterizes this as a case in which the prosecution intentionally misused an inadmissible confession. The defendant offers no authority for the proposition that a detective’s actions in response to cross-examination are attributable, without more, to the prosecution. Nor has the defendant attempted to demonstrate that prosecutorial misconduct required a mistrial, or that such misconduct not requiring mistrial on its own account is in any way determinative of, or even relevant to, the disposition of a claimed Bruton violation.
Where the challenged statement neither refers to the defendant nor specifies any acts “confessed,” contextual considerations could not “inevitably compel[ ] an inculpating inference,” English v. United States, 620 F.2d 150, 153 n.7 (7th Cir.), cert. denied, 449 U.S. 859 (1980).
Concurring Opinion
(concurring). I again raise the question whether Commonwealth v. Goldenberg, 338 Mass. 377 (1959), is still good law. See Commonwealth v. Helfant, 398 Mass. 214, 221 n.5 (1986). Recent scholarship on the crime of rape creates serious doubt as to the validity of the Goldenberg rule. See generally S. Estrich, Real Rape (1987); S. Brownmiller, Against Our Will: Men, Women and Rape (1975).
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