Opinion
21-P-351
04-08-2022
COMMONWEALTH v. Krishna P. LAMICHHANE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant was convicted of five counts of indecent assault and battery. See G. L. c. 265, § 13H. On appeal, the defendant argues that the trial judge erred in denying a pretrial motion to suppress the defendant's purportedly involuntary statements. He also argues that the lack of a specific unanimity instruction and the erroneous admission of certain evidence created a substantial risk of a miscarriage of justice. We affirm.
The defendant was indicted for two counts of rape and four counts of indecent assault and battery. The jury convicted the defendant of the lesser included offense of indecent assault and battery on the counts of the indictment charging rape. The jury acquitted the defendant of one count of indecent assault and battery.
Background. The jury could have found the following facts. In November 2013, the victim booked an appointment at a massage therapy center in Quincy. The defendant, a licensed massage therapist, performed the massage. After the defendant had massaged the victim for approximately forty to fifty minutes, he "leaned over" the victim and began to touch her breasts. He then "started rubbing [the victim's] vagina," both over and under the victim's underwear. As the defendant leaned over the victim, she could feel his erect penis against her head. The defendant inserted his fingers into the victim's vagina fifteen to twenty times, stopping when the victim said, "Enough." After the defendant left the room, the victim got dressed and "ran out of the building." That evening, the victim went to the hospital and was examined by a sexual assault nurse examiner.
The victim reported the assault to the Quincy police in January 2014. Based on an interview with the victim, a detective in the special investigation unit contacted the defendant, who agreed to speak with the police at the Quincy police station. The interview was conducted by two detectives and recorded with the defendant's consent. At the outset of the interview, the defendant was made aware of, and indicated that he understood, his Miranda rights. After speaking with the detectives for over an hour, the defendant admitted to touching the victim's vagina.
Discussion. 1. Motion to suppress. The defendant sought to suppress as involuntary statements he made during the interview. After an evidentiary hearing at which a recording of the interview was played, the judge denied the motion. The defendant raises the same argument on appeal, arguing that the detectives’ use of minimization tactics, promises of leniency, and a "now or never" theme rendered his statements involuntary.
The Commonwealth may not use the defendant's statements at trial unless it has proven beyond a reasonable doubt that the statements were made voluntarily. Commonwealth v. Cartright, 478 Mass. 273, 287 (2017). "This is not an area of the law that is governed by bright-line rules." Commonwealth v. Tremblay, 460 Mass. 199, 210 (2011). Rather, we look to "the totality of the circumstances surrounding the making of the statement [to determine whether] the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act" (citation omitted). Commonwealth v. Lopez, 485 Mass. 471, 482 (2020). Based on our review of the record, including the video recording, see Commonwealth v. Hammond, 477 Mass. 499, 502 (2017), we discern no error in the denial of the defendant's motion to suppress.
The interview techniques that the defendant paints as improper were not the sort of false or misleading questioning condemned by our case law. At no time did the detectives provide the defendant "an assurance, express or implied, that [a confession would] aid the defense or result in a lower sentence" (citation omitted). Commonwealth v. Colon, 483 Mass. 378, 390 (2019). The detectives’ general suggestions, such as, "no matter what, when someone's honest that's always gonna work in [their] favor," were not impermissible. See, e.g., Commonwealth v. Santana, 477 Mass. 610, 619 (2017). Nor did the detectives seek to minimize the seriousness of the allegations; indeed, they were clear throughout the interview that the victim had accused the defendant of sexual assault. Contrast Commonwealth v. Ortiz, 84 Mass. App. Ct. 258, 268-270 (2013) (investigators’ misrepresentation of legal consequences, among other improper tactics, warranted suppression). Rather, the detectives offered hypothetical and alternative explanations for the victim's allegation: that she was lying, the sex acts were consensual, or the defendant had committed a crime. The defendant remained composed and consistently denied that he had touched the victim inappropriately. Despite eventually admitting that he had "made a mistake" and touched the victim's vagina, the defendant continued to deny that the touching was nonconsensual, or that he ever touched her breasts. Finally, the detectives never implied that the defendant must speak with them or lose his opportunity to present a defense at trial. Contrast Commonwealth v. Thomas, 469 Mass. 531, 542 (2014). We discern no error.
2. Duplicative convictions. We also reject the defendant's claim that, because the jury were not given a specific unanimity instruction or provided a special verdict slip, he could have been convicted of indecent assault and battery as a lesser included offense of rape based on the same facts that supported his convictions of the other counts, thus risking duplicative convictions. Although we agree that, "[i]n some circumstances, a general unanimity instruction and a general verdict slip will not be sufficient ‘to ensure the requisite unanimity,’ " such circumstances are not present here. Commonwealth v. Arias, 78 Mass. App. Ct. 429, 432 (2010), quoting Commonwealth v. Santos, 440 Mass. 281, 284 (2003).
The defendant did not request either a specific unanimity instruction or a special verdict slip.
Here, the Commonwealth's closing argument identified the specific alleged conduct on which each count of indecent assault and battery was based. The prosecutor summarized the victim's testimony, arguing that the defendant touched each of the victim's breasts and "outside her underwear in the pubic area" with his hands, and that his penis touched her head. The prosecutor also identified the specific conduct that underlay the rape charges. The judge instructed the jury that indecent assault and battery is a lesser included offense of rape, but that the jury had a "duty to return a verdict of guilty on the highest crime which the Commonwealth has proved beyond a reasonable doubt," with each verdict based on "separate acts." Thus, the jury were clearly informed that any conviction of indecent assault and battery, as a lesser included offense of rape, had to be based on the conduct the Commonwealth alleged to be rape. Contrast Commonwealth v. Niels N., 73 Mass. App. Ct. 689, 693 (2009) (jury not informed "as to how to view the evidence in relation to the charges"). Particularly where, as here, the Commonwealth presented sufficient evidence to support each of the defendant's convictions, there was no risk of a miscarriage of justice. See Commonwealth v. Erazo, 63 Mass. App. Ct. 624, 630 (2005).
This is not a case where the Commonwealth charged a single crime but proceeded on more than one theory of culpability, see Arias, 78 Mass. App. Ct. at 432, or where evidence of discrete or temporally distinct incidents could separately be sufficient proof for a conviction of a single count. See Santos, 440 Mass. at 284-285.
The defendant's convictions of indecent assault and battery as a lesser included offense of rape are not duplicative of his other convictions for the same offense because the convictions are based on testimony that the defendant touched each of the victim's breasts and her vagina with his hands, as well as her head with his penis. See Commonwealth v. Dykens, 473 Mass. 635, 645 (2016) ("The question whether factual allegations within multiple indictments adequately charge separate attempts ... is a factual question that a properly instructed jury must decide"). Regardless of whether the defendant used one or two hands, each breast is a discrete body part that constitutes a "private area." See Commonwealth v. Cruz, 93 Mass. App. Ct. 136, 138 (2018).
3. Improper admission of evidence. The defendant argues that the admission of certain evidence, not objected to at trial, created a substantial risk of a miscarriage of justice. First, the defendant contends that it was error for the jury to hear, on the video recording, the detectives’ opinion that the defendant was lying. "It is true that if a defendant is accused of a crime and unequivocally denies it, the denial is not admissible at trial." Commonwealth v. Collazo, 481 Mass. 498, 500 (2019). However, the statements that the defendant characterizes as improper were "not directly tied to the defendant's culpability." Commonwealth v. Cruzado, 480 Mass. 275, 278 (2018). Rather than expressing a belief that the defendant had committed a crime or doubt whether any touching was consensual, the detectives’ statements expressed disbelief at the defendant's professed lack of memory that any inappropriate conduct had occurred at all. Nor did one of the detectives’ trial testimony suggest that the defendant denied culpability in the face of a direct accusation and the detectives discredited that denial. See Commonwealth v. Colon, 64 Mass. App. Ct. 303, 306-308 (2005) (discussing bar on credibility testimony).
Additionally, we note that trial counsel may well have refrained from seeking to have the statements redacted for tactical purposes, as the defendant's inculpatory statements, made at the end of the interview, were clearly admissible. See Mass. G. Evid. § 801(d)(2)(A) (2021). Indeed, trial counsel argued forcefully in closing that the defendant made these statements as a result of the detectives’ coercive interview techniques. See, e.g., Commonwealth v. Pytou Heang, 458 Mass. 827, 852-853 (2011).
Next, the defendant contends that "emotional" testimony from the first complaint witness created a substantial risk of a miscarriage of justice. Specifically, the defendant objects to testimony that the witness handed the phone to a friend at one point when the victim called the witness to report the assault, because the witness "was upset and I didn't want [the victim] to hear me upset." Although first complaint testimony should be admitted only for the limited purpose of corroborating the victim's account, see Commonwealth v. King, 445 Mass. 217, 219 (2005), to the extent that this statement was problematic, it was fleeting and immediately followed by a first complaint instruction. Given the detailed testimony by the victim, which the jury was entitled to credit, and the defendant's admissions during the police interview, we are not persuaded that this remark " ‘materially influence[d]’ the guilty verdict[s]" (citation omitted). Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
Judgments affirmed.