Commonwealth v. Jansen
Massachusetts Supreme Judicial Court
March 2, 2011
459 Mass. 21
Rape, Joint Enterprise, Double jeopardy, Joint Venturer, Deoxyribonucleic Acid (DNA), Consent
The grand jury returned three indictments against the defendant for aggravated rape. The first indictment charged the defendant with aggravated rape for the sexual intercourse he committed with the alleged victim. The second and third indictments charged the defendant with aggravated rape for the sexual acts committed by his alleged joint venturers. At trial, the jury was not able to reach a unanimous verdict, so the judge declared a mistrial. The defendant moved to dismiss the indictments arguing that because the evidence presented at the trial was legally insufficient, double jeopardy barred a retrial. The trial court granted the defendant’s motion as to all of the charges except for the lesser included charge of rape in the first indictment. The Supreme Judicial Court (SJC) affirmed the trial court’s ruling.
Facts
On September 23, 1998, the alleged victim drove to a bar where she ran into Lampron, an ex-boyfriend, and two of his friends, the defendant and Kincaid. The victim initially spoke with Kincaid for twenty to thirty moments and then the victim and Kincaid walked over to the table where Lampron and Kincaid were seated. The victim had trouble walking over to the table; she appeared as if she was drunk and her legs were giving out. The three men and the victim later left the bar and went to the defendant’s house. The victim had no memory of leaving the bar or going to the defendant’s home.
The victim remembered waking up in Kincaid’s bed when it was dark but not being able to move or resist. She also recalled Kincaid and Lampron each having sexual intercourse with her. The victim regained consciousness again the next day when it was light outside and could not move or resist. She recalled that Kincaid and Lampron again took turns having sexual intercourse with her. The victim did not remember if the defendant was present during the intercourse or if he engaged in a sexual act with her.
After returning home and sleeping for some time, the victim went to the bathroom and found a hair tie inside her vagina, which she removed and discarded in the trash. The victim also noticed that prescription medication, which had been in her purse, was no longer there. After speaking to police on September 25th, the victim retrieved the hair tie from the garbage and put it in a plastic bag. The deoxyribonucleic acid (DNA) testing of the hair tie could not exclude the defendant as a possible contributor.
Two witnesses at trial testified about the existence of a videotape of which Kincaid had shown them portions. The videotape was recorded as if from the vantage point of a heating vent in the defendant’s bedroom floor; the video showed Kincaid and Lampron in masks taking turns committing sexual acts with the victim into the victim’s vagina. On the video, the victim was not responsive and had no facial expression. The defendant told police that once they had arrived at home he went to bed in his bedroom and had not participated in any videotaping.
At trial, the Commonwealth argued that the rape was aggravated because a joint enterprise committed the rape. The jury was unable to reach a unanimous verdict, so the judge declared a mistrial. The defendant moved to dismiss the indictments arguing that because the evidence presented at the trial was legally insufficient, double jeopardy barred a retrial. The trial court granted the motion as to the aggravated rape charge, but denied the motion as to the lesser included offense of rape. The judge also granted the motion as to the second and third indictments. On appeal, the Appeals Court concluded that the defendant could be retried on all of the indictments.
Aggravated Rape
Aggravated rape by reason of a joint enterprise requires a united act of at least two people. The SJC concluded that there was no evidence that the defendant committed a sexual act with the victim as a united act with Kincaid or Lampron. There was not sufficient evidence that any sexual act was done in the presence of Kincaid or Lampron or that Kincaid or Lampron were willing to assist the defendant in a sexual act with the victim. Therefore, there was not sufficient evidence of aggravated rape as to the first indictment.
The SJC did not find that there was sufficient evidence to show a united act as to the second and third indictments. The Commonwealth argued that there was a united act because the defendant operated the video camera while Kincaid and Lampron engaged in sexual acts with the victim. However, the SJC concluded that this theory failed because there was no evidence that showed the defendant operated the camera, as opposed to Kincaid or Lampron. The heating vent where the video camera was located was accessible from both the defendant’s and Kincaid’s rooms. The Court concluded that the Commonwealth’s theory would require the use of conjecture. Therefore, the Commonwealth could not retry the defendant under the second and third indictments.
Lesser Included Offense of Rape in the First Indictment
The SJC held that the Commonwealth could retry the defendant for the lesser included offense of rape that was charged in the first indictment. To prove the crime of rape occurred, the Commonwealth needed to show that the victim was incapable of consenting and that there was force to commit the act of intercourse, which the jury could infer from circumstantial evidence. The DNA testing could not exclude the defendant as a donor of the sperm found on the hair tie. A jury could reasonably conclude that the defendant had intercourse with the victim during the time she was at his home. Any suggestions that the semen on the hair tie were not from sexual intercourse the defendant engaged in with the victim on September 23rd or 24th went to the weight of the evidence and not the sufficiency of the evidence.
There was also sufficient evidence presented as to the victim’s inability to consent. At the bar, the victim was impaired and she walked as if she was drunk. The victim also recalled not being able to move or resist during her encounters with Kincaid and Lampron and that she was missing prescription medication that she had with her at the bar. In addition, the victim remembered feeling confused. Consequently, a jury could infer that the victim was not able to consent and that defendant knew that she could not consent when he had intercourse with her.
- Prepared by JM
