Commonwealth v. Ronald McCoy, May 20, 2010
456 Mass. 838
Rape, Kidnapping, Assault and Battery,First complaint, Cumulative evidence. Error, Harmless Practice, Challenge to jurors, Examination of jurors, Voir dire, Harmless error, Lesser included offense, Duplicative convictions.
The defendant was convicted by a jury of kidnapping, rape, and assault and battery. The defendant contended that his convictions should be reversed, arguing that the trial judge improperly denied his request for additional peremptory challenges, that after testimony from a designated first complaint witness the judge erred by allowing cumulative first complaint testimony without limiting instructions, and that the kidnap and assault and battery charges are lesser included offenses of the rape and should be dismissed. The Appeals court reversed his convictions. After granting leave for further appellate review the SJC affirmed all of the defendant’s conviction.
This case stems from events which occurred Feb. 26th, 1996. The victim was partying with various friends and confessed to having used “crack” cocaine and consuming several alcoholic drinks throughout the evening. While walking home from the party, a person she recognized vaguely as an acquaintance she knew through her boyfriend offered her a ride home in his truck. Instead of bringing her home, this man (later determined to be the defendant) drove the truck to a dead end street near a park where he attempted to force the victim to engage in oral sex. When she resisted she was struck in hard in the face, briefly losing consciousness. When she awoke the defendant was engaged with her in sexual intercourse. She alleges that the defendant then kicked her out of the car with his construction boots. She lay in the road until picked up by an unidentified man who brought her to the police station. At that point she related the details of her assault to the desk officer. The officer noticed her lip bleeding so he had her brought to a local hospital where a rape examination and interview were conducted by a SANE nurse. The next day she met with a detective who would be investigating the rape, and again recounted the details of the incident. She did not see the defendant again until 1999, and it wasn’t until 2001 that the Boston police crime lab matched the DNA recovered from the rape exam to a known DNA profile of the defendant.
Juror Selection; Peremptory Challenges; Voir Dire
During jury selection defense counsel asked the judge for 2 additional peremptory challenges after more than thirty of the potential jurors raised their hands in response to being asked whether they or anyone in their families had been the victim of a violent crime. The judge denied this request, and the SJC notes that a defendant indicted for a crime not punishable by life in prison is entitled to 4 peremptory challenges though the judge may, as a matter of discretion, allow motions for additional challenges. The SJC found that the judge did not err in denying the request, particularly since the defendant did not use his last peremptory challenge before the selection of the last juror, nor did he inform the judge that he would have used his challenges on a seated juror had he had additional challenges. The court noted that this rule was clearly articulated in Commonwealth v. Leahy, 445 Mass. 481, 497 (2005).
The defendant also contended that the judge conducted insufficient voir dire questioning of 6 members of the venire, which resulted in prejudice. The court stated that the scope of voir dire questioning rests in the sound discretion of the trial judge, and that a determination by a judge that a jury is impartial will not be overturned absent a clear showing of abuse of discretion or that the finding was clearly erroneous. The court also stated that if a defendant fails to challenge a juror for cause, the questions of the impartiality of that juror and the adequacy of voir dire are waived. The record indicated that the defendant failed to challenge 5 of the 6 jurors in question for cause, thus barring him from now raising an issue of their impartiality. As to the 6th juror the defendant argues that he shouldn’t have had to use a peremptory challenge because the judge should have asked further questions after the juror admitted to having been the victim of a rape 5 years prior. The court found this argument unpersuasive noting that all lawyers have to make choices about which jurors to challenge, and that it did not result in “prejudicial diminution” of his challenges.
The last of the defendant’s arguments about the jury was that the amount of biased individuals on the jury resulted in “compromise verdicts”. The court noted that while the jury acquitted the defendant of assault with a deadly weapon and assault with intent to rape, but convicted for rape, assault, and kidnapping; these verdicts were not necessarily inconsistent and in fact was indicative of an unbiased jury.
Cumulative First Complaint Testimony
At trial, the court allowed testimony from the victim and the desk officer who was the designated first complaint witness for the case. However, the court also allowed testimony to be heard from the victim’s mother, the investigating detective, and the SANE counselor. All of which testified on a mix of things including the defendant’s demeanor and appearance which was not hearsay and would have been admissible as evidence, but they all also testified to the fact that the victim had told them about the attack and described what was said. The SJC found that those parts of the testimony were not admissible because they did result in cumulative first complaint testimony. However, the court found that not all portions of the testimony were inadmissible, and that the defendant never objected to them being called as witnesses by the prosecution and actually engaged in thorough cross-examinations in an attempt to highlight factual inconsistencies in the versions of the events the victim told the different witnesses. It was also stated that the defendant may very well have intended to call these witnesses himself in his direct examination later in the trial. For all these reasons the SJC held that though portions of the testimony did violate the first complaint rule, because the defense counsel did not object during the trial and because of the remaining weight of the evidence, the violation did not result in a substantial risk of a miscarriage of justice.
Duplicative Convictions
456 Mass. 838
Rape, Kidnapping, Assault and Battery,First complaint, Cumulative evidence. Error, Harmless Practice, Challenge to jurors, Examination of jurors, Voir dire, Harmless error, Lesser included offense, Duplicative convictions.
This case stems from events which occurred Feb. 26th, 1996. The victim was partying with various friends and confessed to having used “crack” cocaine and consuming several alcoholic drinks throughout the evening. While walking home from the party, a person she recognized vaguely as an acquaintance she knew through her boyfriend offered her a ride home in his truck. Instead of bringing her home, this man (later determined to be the defendant) drove the truck to a dead end street near a park where he attempted to force the victim to engage in oral sex. When she resisted she was struck in hard in the face, briefly losing consciousness. When she awoke the defendant was engaged with her in sexual intercourse. She alleges that the defendant then kicked her out of the car with his construction boots. She lay in the road until picked up by an unidentified man who brought her to the police station. At that point she related the details of her assault to the desk officer. The officer noticed her lip bleeding so he had her brought to a local hospital where a rape examination and interview were conducted by a SANE nurse. The next day she met with a detective who would be investigating the rape, and again recounted the details of the incident. She did not see the defendant again until 1999, and it wasn’t until 2001 that the Boston police crime lab matched the DNA recovered from the rape exam to a known DNA profile of the defendant.
Juror Selection; Peremptory Challenges; Voir Dire
During jury selection defense counsel asked the judge for 2 additional peremptory challenges after more than thirty of the potential jurors raised their hands in response to being asked whether they or anyone in their families had been the victim of a violent crime. The judge denied this request, and the SJC notes that a defendant indicted for a crime not punishable by life in prison is entitled to 4 peremptory challenges though the judge may, as a matter of discretion, allow motions for additional challenges. The SJC found that the judge did not err in denying the request, particularly since the defendant did not use his last peremptory challenge before the selection of the last juror, nor did he inform the judge that he would have used his challenges on a seated juror had he had additional challenges. The court noted that this rule was clearly articulated in Commonwealth v. Leahy, 445 Mass. 481, 497 (2005).
The defendant also contended that the judge conducted insufficient voir dire questioning of 6 members of the venire, which resulted in prejudice. The court stated that the scope of voir dire questioning rests in the sound discretion of the trial judge, and that a determination by a judge that a jury is impartial will not be overturned absent a clear showing of abuse of discretion or that the finding was clearly erroneous. The court also stated that if a defendant fails to challenge a juror for cause, the questions of the impartiality of that juror and the adequacy of voir dire are waived. The record indicated that the defendant failed to challenge 5 of the 6 jurors in question for cause, thus barring him from now raising an issue of their impartiality. As to the 6th juror the defendant argues that he shouldn’t have had to use a peremptory challenge because the judge should have asked further questions after the juror admitted to having been the victim of a rape 5 years prior. The court found this argument unpersuasive noting that all lawyers have to make choices about which jurors to challenge, and that it did not result in “prejudicial diminution” of his challenges.
The last of the defendant’s arguments about the jury was that the amount of biased individuals on the jury resulted in “compromise verdicts”. The court noted that while the jury acquitted the defendant of assault with a deadly weapon and assault with intent to rape, but convicted for rape, assault, and kidnapping; these verdicts were not necessarily inconsistent and in fact was indicative of an unbiased jury.
Cumulative First Complaint Testimony
At trial, the court allowed testimony from the victim and the desk officer who was the designated first complaint witness for the case. However, the court also allowed testimony to be heard from the victim’s mother, the investigating detective, and the SANE counselor. All of which testified on a mix of things including the defendant’s demeanor and appearance which was not hearsay and would have been admissible as evidence, but they all also testified to the fact that the victim had told them about the attack and described what was said. The SJC found that those parts of the testimony were not admissible because they did result in cumulative first complaint testimony. However, the court found that not all portions of the testimony were inadmissible, and that the defendant never objected to them being called as witnesses by the prosecution and actually engaged in thorough cross-examinations in an attempt to highlight factual inconsistencies in the versions of the events the victim told the different witnesses. It was also stated that the defendant may very well have intended to call these witnesses himself in his direct examination later in the trial. For all these reasons the SJC held that though portions of the testimony did violate the first complaint rule, because the defense counsel did not object during the trial and because of the remaining weight of the evidence, the violation did not result in a substantial risk of a miscarriage of justice.
Duplicative Convictions
The defendant argued that the assault and kidnapping charges should be seen as lesser included offenses within the rape charge and that those charges should be dismissed. The SJC disagreed, first noting that a defendant may be properly punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not. Thus the court found that because kidnapping involved imprisoning a person which is not an included element of rape, and because a charge of kidnapping does not require sexual intercourse which rape does, the two charges were not duplicative. Furthermore, they found that although assault may sometimes be seen as a lesser included offense within a rape charge because they both contain an element of force, if each conviction is premised on a distinct criminal act multiple convictions are permissible. In this case, the assault charge was for striking the victim in the face, which was seen by the court as a separate criminal act than the rape of the victim. Accordingly, the SJC affirmed all convictions of the defendant.
