Commonwealth v. Carey (May 26, 2011)
Docket No. 09 – P – 1832.
Appeals Court of Massachusetts.
The defendant was convicted of armed home invasion, assault and battery and attempting to murder the victim by strangulation.
Facts: The victim opened the door for the defendant, whom she knew as her friends’ ex-husband. The defendant entered and asked where her husband was. The victim said he was not there. The victim opened the door for him to leave but he did not leave. Instead, he took a necktie, put it around her neck and began to pull the ends. He kicked her legs, and she fell on to the floor. The defendant continued to pull harder and harder. The victim asked help for her son. Her son got a knife from the kitchen and stabbed the defendant in the back. The victim ran out to the back yard and ran to the home of neighbors. The neighbor called police. As part of their investigation, police conducted a forensic examination of the defendant’s computer. The police found “400 or more” photographs “that were strangulation-oriented,” and eight were offered and received in evidence. The police also searched the defendant’s computer for the term “asphyxia” and found 978 “hits” and 47 files. A 90-second video clip depicting strangulation was found too.
Issue1: Whether the defendant’s contention that his intent was to have sex with her, not to kill the victim, is a defense.
No. The defendant argued his intent was not to kill the victim but to have sex with her, that his interest in sexual asphyxiation did not mean that he wanted to kill her, and “asphyxiation activities” were consensual. The defendant relies on Lawrence v. Texas, 539 U.S. 558 (2003), contending that consensual sexual activity is a defense. However, a consent is not a defense to harmful conduct, under existing Massachusetts precedent. Massachusetts does not recognize an individual’s ability to consent to “such violence that bodily harm is likely to result.” Here, the violent and physically harmful nature of the defendant’s acts defeats his argument.
Issue2: Whether admission in evidence of photographs, video, and computer search records were abuse of discretion of trial judge.
No. The trial judge did not abuse its discretion to admit such evidence. The defendant asserts that these graphic materials were of negligible relevance but highly prejudicial. Case law establishes that if such evidence possess evidential value on a material matter, the determination whether a photograph possess such value is within the discretion of the trial judge. The trial judge determined that the evidence was admissible because it was highly probative on the issue of the defendant’s motive and intent. The record demonstrates that the judge was aware of the evidentiary issue to be determined, recognized his discretion, and exercised properly.
Judgments affirmed.
Prepared by YK
