Com. v. Moore

• Decision Date: 12 May 1971
• Citation: 269 N.E.2d 636,359 Mass. 509
• Parties: COMMONWEALTH v. Doreen MOORE (and six companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 636

269 N.E.2d 636

359 Mass. 509

COMMONWEALTH v. Doreen MOORE (and six companion cases ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 5, 1971.

Decided May 12, 1971.

Stephen Axelrad, Boston (Reuben Goodman, Boston, with him), for defendants.

William J. Doyle, Asst. Dist. Atty. (Elizabeth C. Casey, Legal Asst. to Dist. Atty., with him), for the Commonwealth.

Before TAURO, C.J., and SPALDING, SPIEGEL, QUIRICO and BRAUCHER, JJ.

BRAUCHER, Justice.

This case rests largely on the testimony of the victim, a runaway fourteen-year old girl. In the words of the prosecutor, she is 'not the smartest girl in the world.' According to her testimony, she came to Boston alone and was taken in by the defendants, a twenty-three year old pimp, and a seventeen-year old prostitute. They have been represented by court-appointed counsel and now appeal under G.L. c. 278, §§ 33A--33G, from convictions by a jury on indictments charging the male defendant with carnally knowing and abusing a female child under sixteen and charging both defendants with assault and battery by means of a dangerous weapon and with contributing to the delinquency of a minor.

There was evidence of the following facts. The victim was invited to stay with the defendants in a Boston apartment, and did so. They asked her to 'go out on the streets' and 'make some money.' After several days, on the night of Sunday, November 23, 1969, she had sexual relations with the male defendant. The next day, Monday, she and the female defendant solicited a man who was a plainclothes police officer. Both got into his car to go to the apartment, but he arrested them. They spent Monday night in jail, and the male defendant posted bail for them on Tuesday. The female defendant went to stay with her mother and the victim stayed in the apartment alone with the male defendant.

On the following Sunday, November 30, the female defendant returned to the apartment. The male defendant told the victim that she was just getting everyone into trouble and that she ought to leave. He beat her with his hands, a shoe, a length of rubber hose, and a vacuum cleaner pipe. He handed a knife to the female defendant and told her to heat it. She did so and returned it to him, and he used it to burn the victim's neck and cut a pattern on her face. That night the female defendant took the victim to the YWCA and got her a room where she spent the night.

On Monday, December 1, the victim and the female defendant went to the Boston Municipal Court to face the prostitution charge. The victim explained her appearance by saying she had been scratched by a cat and hit by a baseball bat. Her case was placed on file, and she was released in the custody of the aunt of the female defendant. She went back to the apartment but spent the night at the YWCA after the male defendant beat her again.

The victim spent Tuesday night and much of Wednesday at the apartment. On Wednesday evening, December 3, she went out, ostensibly 'to get some clothes from the laundry,' went to the police station, and made a complaint against the male defendant. A little after midnight she and two officers in uniform went to the apartment. The officers arrested the male defendant, and seized the knife, the rubber hose, and the vacuum cleaner pipe. The next day the victim swore to a complaint against the female defendant, and she was arrested on the afternoon of December 4.

1. The seizure. There was testimony that the victim admitted the police officers to the apartment with a key given her by the male defendant, and other testimony that the male defendant opened the door before she could. One of the officers testified that they then told the male defendant he was under arrest for assault and battery by means of a dangerous weapon and informed him of his rights. The victim then picked up the knife from a counter about seven or eight feet from the male defendant and handed it to the officer. She went into the bathroom, brought out the hose, and handed it to the officer. About ten minutes later, as the patrol wagon arrived, the male defendant called to someone upstairs to give them the pipe, the officers went upstairs, and an unidentified male gave the pipe to them.

The defendants assign as error the judge's refusal to hold a voir dire concerning the entry and search at the apartment and his refusal to suppress the knife, hose and pipe as products of an illegal search and seizure. The attempt to exclude the evidence as illegally obtained was made for the first time when the evidence was offered at the trial and was not timely. Rule 101B of the Superior Court (1954). Commonwealth v. Lewis, 346 Mass. 373, 382, 191 N.E.2d 753, cert. den. sub nom. Lewis v. Massachusetts, 376 U.S. 933, 84 S.Ct. 704, 11 L.Ed.2d 653. Commonwealth v. Penta, 352 Mass. 271, 277, 225 N.E.2d 58; Commonwealth v. Hanger, Mass., 258 N.E.2d 555. ^a The defendants had ample notice that the exhibits were in the possession of the Commonwealth. The male defendant aided in the search and was present at the seizures. People v. Williams, 23 Mich.App. 129, 178 N.W.2d 128, leave to appeal den. 383 Mich. 792. He was personally informed that he was being arrested for assault and battery with a dangerous weapon, and three separate indictments against him for that crime specified, respectively, a rubber hose, a pipe, and a knife.

In the circumstances disclosed by the testimony there was no error in the judge's refusal to hold a voir dire during the trial. Compare Commonwealth v. Gibson, Mass., 255 N.E.2d 742. ^b The evidence in question, consisting of ordinary objects likely to be found in many households, was not of great significance. The police officers were lawfully admitted to the apartment and had probable cause to arrest the male defendant without a warrant. Commonwealth v. Andrews, Mass., 267 N.E.2d 233. ^c Compare Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484. They gave warnings which satisfied Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The seizure of the knife was proper even under the stringent standard established in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; Commonwealth v. Cohen, Mass., 268 N.E.2d 357. ^d Occupancy by the victim, who had been living in the apartment for about two weeks at the invitation of the defendants, justified her entry into the bathroom where she found the hose. ² Commonwealth v. Martin, Mass., n. 3, 264 N.E.2d 366, ^e and cases cited. Wright v. United States, 389 F.2d 996, 998--999 (8th Cir.). People v. Howard, 166 Cal.App.2d 638, 651, 334 P.2d 105; People v. Smith, 183 Cal.App.2d 670, 671, 6 Cal.Rptr. 866. Compare Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 11 L.Ed.2d 856, where the consent of a hotel clerk was held ineffective. Without any search, the male defendant himself directed a third person in other premises to deliver the pipe to the police. Raimondi v. United States, 207 F.2d 695, 696 (9th Cir.). United States v. MacLeod, 207 F.2d 853, 854--857 (7th Cir.). See Anno. 9 A.L.R.3d 858, 883.

The hose and the pipe were offered and admitted as evidence only against the male defendant. No exception to these rulings was taken on behalf of the female defendant, and we therefore have before us no claim of error affecting her. Commonwealth v. Underwood, Mass., 265 N.E.2d 577. ^f In any event, this evidence was not connected to her in any way and could not have affected the jury's verdict as to her.

2. The police report. The male defendant excepted to the admission of the journal entry of the police report of his arrest, offered by the female defendant to show that she was not mentioned, on the ground that it should have been limited by instruction to the case against her. The judge thought he had given such an instruction, and told the jury that he had. The statements in the entry were entirely repetitious of the testimony of the victim and the police, and could not have affected the jury's verdict. Commonwealth v. Howard, 355 Mass. 526, 530, 246 N.E.2d 419. Commonwealth v. Izzo, Mass., 267 N.E.2d 631. ^g

3. Knowledge of the victim's age. The victim testified that she had an identification card showing that she was eighteen years old and that she told the female defendant she was eighteen. The male defendant argues that the victim convinced many people that she was eighteen, including police officers, her probation officer and her lawyer, and a judge of the Boston Municipal Court. The male defendant excepted to a portion of the judge's charge to the jury in which he stated that a belief that the victim was over eighteen was not a defence to the indictment for carnally knowing and abusing a female child under sixteen.

The judge's charge was in accord with the long-standing interpretation of G.L. c. 265, § 23. Commonwealth v. Murphy, 165 Mass. 66, 70, 42 N.E. 504. For numerous similar decisions in other States, see Anno. 8 A.L.R.3d 1100, 1102--1103. Compare People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673. For a proposed legislative change, see Am. Law Inst., Model Penal Code, Proposed Official Draft (1962) § 213.6(1). The male defendant seeks to distinguish the Murphy case as involving only the question whetehr it was necessary for the prosecution to allege and prove knowledge, and urges us to recognize an affirmative defence that the defendant reasonably believed the child to be over sixteen. Compare Commonwealth v. Elwell, 2 Met. 190, 192; Commonwealth v. Douglas, 354 Mass. 212, 219--220, 236 N.E.2d 865, cert. den. sub nom. Douglas v. Massachusetts, 394 U.S. 960, 89 S.Ct. 1301, 22 L.Ed.2d 562; State v. Audette, 81 Vt. 400, 402, 70 A. 833. We think, however, that the court in the Murphy case intended to rule that a mistake of fact did not avail the defendant.

The male defendant also asserts that if the statute imposes strict liability it violates the due process clause of the Fourteenth Amendment and imposes a...