Supreme Judicial Court -- January 30, 2012
Facts: The victim operated a beauty salon on Salem Street in Malden and the defendant operated a video and music shop next door. The victim and defendant lived together until February 5, 2007 at which time defendant was ordered to move out of their apartment pursuant to a non-contact abuse prevention order obtained by the victim, that had recently expired. The order, however, allowed for defendant to operate his business.
On February 10, 2008, the defendant learned that the victim was dating a man named Yves at which point he confronted the two individuals and berated the victim.
On Feburary 13, 2008 the victim arrived at the beauty salon at about 9:45 am. At about 11:40 am she told Blandine, an employee, that she was going out and would return. She left without her pocketbook and never returned. Throughout the day, Blandine tried to call the victim's cellular phone but the victim did not answer. Within two hours of the victim leaving the salon, the defendant entered and told Blandine that he had come for the victim's pocketbook.
Multiple people, including Blandine, Yves, and victim's brother had attempted to call the victim over the next two weeks but each call went unanswered. The victim's cellular phone records showed which local cellular telephone tower transmitted each call. On February 13, the victim's cellular telephone received all calls from the tower near the victim's salon and the defendant's store. On February 14, calls were received from a tower near where the defendant was living.
The victim's brother arrived at the defendant's store and inquired about the victim. The defendant told him that he had seen men changing the lock on the salon door. When the victim's brother telephoned the salon the following Friday, the defendant answered the telephone and told her brother that he had obtained a key from the landlord of the building and that he was there to clean the salon. When her brother asked for the landlord's telephone number, the defendant said that he did not have it. The brother then drove to the Lynn police department for assistance.
On Wednesday, February 27, officers from the Malden police department discovered the victim's car parked on Faulkner street which is between the victim's salon and a location where the defendant had been dropped off by a cab at approximately 3:30 am on February 14. The pocketbook was found in the car, the contents of which were inventoried. Police found a duplicate car key, the original was found above a ceiling panel in the defendant's store, her cellular telephone, and a copy of the abuse prevention order. The victim's body was found in the trunk of the car.
An autopsy of the victim's body revealed that she had died from asphyxia. DNA from the defendant was found under the victim's fingernails and was obtained through vaginal and anal swabs. Chewing gun affixed to the victim's shirt was also determined to match that of the defendant.
Procedural History: The defendant was convicted of murder in the first degree on theories of deliberate premeditation and felony-murder based on a predicate felony of aggravated rape, and aggravated rape. The defendant appealed his conviction asserting error in the denial of his pretrial motion to dismiss based upon an argument that there was a lack of probable cause that the sexual intercourse between him and the victim was not consensual, and denial of his motion for a required finding of not guilty, both based on the sufficiency of evidence as to the element of consent with respect to aggravated rape. He also challenged the admission of evidence of prior bad acts, and the propriety of the prosecutor's closing arguments.
Issue #1: Whether the grand jury received evidence of criminality on part of the defendant so as to justify his indictment for aggravated rape?
Yes. The court determined that the grand jury had been presented with sufficient evidence to “establish probable cause to believe the defendant had had sexual and unnatural sexual intercourse with the victim, that he compelled her to submit by force and against her will, and that serious bodily injury resulted.” Therefore, the court concluded that the lower court did not err in denying the defendant's motion to dismiss the aggravated rape indictment because the jury could have inferred that the victim did not consent to intercourse with the defendant.
Issue #2: Whether the lower court erred in denying his motion for a required finding of not guilty as to the indictment alleging aggravated rape and so much of the murder indictment that relied on a theory of felony murder based on the predicate felony of aggravated rape, because the Commonwealth failed to prove beyond a reasonable doubt that the victim did not consent to sexual intercourse with the defendant?
No. The court found that based upon the evidence of lack of consent presented, particularly the victim's injuries, was very powerful and supported a finding beyond a reasonable doubt that the victim did not consent to sexual intercourse or “unnatural intercourse” with the defendant.
Issue #3: Whether the lower court erred by allowing evidence of the defendant's prior bad acts?
No. The court determined that because the absence of consent is an essential element of the crime of rape, the victim's state of mind at the time of the intercourse is relevant to the issue of consent. All such objected to evidence presented at the trial was relevant to the victim's state of mind, specifically whether she would have consented to sexual intercourse with the defendant. (MS)