Opinion
13-P-1504
01-30-2015
COMMONWEALTH v. SAVERY J. ANTONE.
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 appeals from his convictions on two counts of indecent assault and battery on a person over the age of fourteen, pursuant to G. L. c. 265, § 13H. He argues that there was insufficient evidence to support either count, a videotape of his interview with police was improperly admitted in evidence, a portion of the Commonwealth's closing argument was improper, the District Court judge did not accurately instruct the jury on consent, and trial counsel was ineffective. We affirm.
He was acquitted of an additional count under the same statute.
1. Judicial notice. To the extent that the defendant has asked us to take judicial notice of various medical or pharmacological terms and facts that were not admitted in evidence below, we decline to do. At best, it is doubtful that these matters are proper subjects of judicial notice, but even if they are, none of the proposed facts are necessary to resolve the appeal.
2. Sufficiency of evidence of consent. Next, we reject the defendant's argument that there was insufficient evidence regarding the element of consent with respect to either count. Viewing the evidence in the light most favorable to the Commonwealth, as we must, there was sufficient evidence for the jury to conclude, beyond a reasonable doubt, that the victim was incapable of consenting to the sexual contact on June 7 and 8, 2011. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). See also Commonwealth v. Blache, 450 Mass. 583, 589-590 (2008) (where Commonwealth is relying on incapacity to consent theory, it must show that victim was incapable of consenting, and the defendant had knowledge of the victim's incapacitated state).
The defendant did not move for a required finding of not guilty at trial; in any event, "findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice," and, therefore, we "review the sufficiency of [the] evidence" notwithstanding the defendant's failure to raise the issue below. Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986).
As to the June 7 incident, the victim testified that, after consuming alcohol and drugs and not remembering a portion of the evening, she remembered "[c]oming up to -- in my room"; when asked what she recalled after she "came to," she replied, "[the defendant's] penis in my mouth." The victim further testified that there was a "struggle" and she pushed him off. The victim had consumed at least five shots of alcohol and one pill, possibly a Percocet, up to that point in the evening. Given that testimony, the jury reasonably could have inferred either that the victim was not conscious during the assault and therefore was incapable of consenting for that reason, or, even if she was conscious in the sense of being awake, was so impaired from alcohol and drug use that she was likewise incapable of consenting during that time. See Commonwealth v. Latimore, supra. The victim's testimony also supported a reasonable inference that the victim's incapacity to consent was obvious to the defendant.
With respect to the June 8 charge, the victim testified that she had fallen asleep after consuming multiple shots of alcohol. When she awoke, the defendant was in her room touching her in a sexual manner, and she again "pushed him aside." This testimony clearly indicated that she had not consented to the sexual contact because she was asleep during it, and her incapacitated state would have been obvious to the defendant. Therefore, the defendant has not satisfied his burden on appeal of establishing that no rational trier of fact could have found that the victim was incapable of consenting to the June 7 and 8 sexual contact.
3. Admission of videotape. Third, the defendant did not sufficiently preserve his argument that the videotape of his interview with police should not have been admitted due to its poor audio quality. Although the defendant raised the issue prior to the start of trial, he appeared to be content with the resolution of the issue. He did not object to admission of the recording at trial at either point during trial when the videotape was first marked as an exhibit or later when it was played to the jury following completion of the testimony from the Commonwealth's witnesses, and he made use of it in closing argument. See Commonwealth v. Whelton, 428 Mass. 24, 25 (1998); Mass. G. Evid. § 103(a)(3) (2014). In any event, concerns regarding the quality of the videotape did not justify exclusion of the videotape as a whole. See Commonwealth v. Portillo, 462 Mass. 324, 327 (2012) ("Where the prosecution intends to offer a defendant's recorded statement . . . [and] the statement is in English, the prosecution may offer the recording in evidence without a transcript and rely on the fact finder's understanding of the recorded words"). The judge here previewed a portion of the recording, deeming it sufficiently audible, and was present at trial when the recording was played almost in its entirety. As such, the judge was in a position to determine whether the recording was sufficiently audible, and we discern no error in the judge's decision admitting it, especially after an independent review of the recording.
"[T]he best way I can put it is the way Officer Hornby put it when she said -- during the interview she said, listen, you're an adult, I'm an adult. There was alcohol involved. We all know that things can happen."
The defendant also argues that the officers' questions and statements during the videotape were prejudicial and constituted inadmissible hearsay, and admission of statements made by the officer who did not testify at trial violated the confrontation clause. He did not preserve these arguments, and we discern no substantial risk of a miscarriage of justice resulting from admission of the entire interview, including the officers' statements. See Commonwealth v. Cancel, 394 Mass. 567, 570-571 (1985) ("When an accused responds to incriminating accusations made of him in an equivocal, evasive or irresponsive way inconsistent with his innocence, both the accusations and his answer are admissible. . . . On the other hand, if the accusation is met with an unequivocal denial by the defendant, the hearsay statement is not an admission, and is inadmissible unless some other exception applies" [quotations and citations omitted]). Additionally, the statements were largely cumulative of the victim's testimony at trial. Cf. Commonwealth v. Womack, 457 Mass. 268, 274-275 (2010) (no substantial likelihood of a miscarriage of justice resulted from improper admission of police officer's accusatory statements made during interview of defendant and denied by defendant, where statements were cumulative of other evidence). Moreover, on this record, we cannot be sure that defense counsel did not have tactical reasons for wanting the entire interview in evidence.
4. Prosecutor's closing argument. The defendant next argues, for the first time on appeal, that the prosecutor improperly suggested in closing argument that the defendant had possibly given the victim a pill that either induced her to lose consciousness or deprived her of later memory of events. However, we fail to discern how this isolated comment, even if improper, created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002) (we review for a substantial risk of a miscarriage of justice where defendant failed to preserve the issue).
Specifically, the prosecutor stated "[the defendant] . . . said . . . I got a Perc[ocet] 15. Here you go. She took that Perc 15. And from that point on, whether that pill was a Perc 15 or not, is up to you to decide. But she doesn't remember even going into the liquor store."
Specifically, in light of the fact that the defendant admitted to sexual contact with the victim the evening that he gave her the pill in question, the disputed issue was not whether the victim was drinking or had taken pills, or how she accessed the alcohol and drugs, but how incapacitated she was and whether that incapacitation rendered her unable to consent to the sexual contact. The defendant was not charged with illegally providing the victim drugs, and we do not read the prosecutor's statement as forcefully suggesting that the defendant had, in fact, drugged the victim. In short, given that the statement did not directly speak to the victim's degree of intoxication and her capacity to consent, which was the disputed issue at trial, no substantial risk of a miscarriage of justice was created by the statement.
5. Instructions on consent. As to the defendant's argument that the judge improperly instructed the jury on consent, another issue that he raises for the first time on appeal, we conclude that the judge's instructions were appropriate. Unlike the improper consent instructions at issue in Commonwealth v. Blache, 450 Mass. at 595-597, the judge here properly instructed that the Commonwealth must show that the victim was incapable of consenting because of drug or alcohol consumption, and the defendant was reasonably aware of such incapacity. The judge also omitted the "wholly insensible" language deemed in Blache to be too "archaic and confusing," and made clear that the Commonwealth must prove, beyond a reasonable doubt, a nexus between the victim's alcohol and drug consumption and the incapacity to consent. Id. at 592, 596-597 (it is not enough to show mere intoxication; rather, the Commonwealth must show that such intoxication rendered the victim unable to consent). As to the last point and contrary to the defendant's argument, the judge specifically made clear that "[c]onsumption or intoxication of alcohol by itself does not necessarily mean that an individual is incapable of deciding whether to consent." In short, the judge's consent instructions complied with Blache, and there was no error.
In fact, the judge's instructions tracked Blache's language nearly verbatim at times. Compare trial transcript at 144 ("The question is whether as a result of a person's consumption of drugs and alcohol or both, that person was unable to give or to refuse consent"), with Blache, supra at 590 ("The question instead is whether, as a result of the complainant's consumption of drugs, alcohol, or both, she was unable to give or refuse consent").
6. Ineffective assistance. Finally, we decline to review the defendant's claim, which he has not presented in a motion for a new trial, that trial counsel was ineffective on numerous grounds because such alleged errors do not appear "indisputably on the trial record." Commonwealth v. Zinser, 446 Mass. 807, 811 (2006) ("[T]he preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial. . . . An exception to that rule is . . . when the factual basis of the claim appears indisputably on the trial record").
Judgments affirmed.
By the Court (Cohen,
The panelists are listed in order of seniority.
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Clerk Entered: January 30, 2015.