Com. v. Keevan

• Citation: 400 Mass. 557,511 N.E.2d 534
• Parties: COMMONWEALTH v. James KEEVAN.
• Decision Date: 10 August 1987
• Court: United States State Supreme Judicial Court of Massachusetts

Page 534

511 N.E.2d 534

400 Mass. 557

COMMONWEALTH v. James KEEVAN.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Feb. 2, 1987.

Decided Aug. 10, 1987.

Jane Larmon White, Committee for Public Counsel Services, Boston, for defendant.

J.W. Carney, Jr., Asst. Dist. Atty., for Comm.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

The defendant was convicted of aggravated rape, kidnapping, and unarmed robbery. ¹ On March 8, 1985, he was sentenced to three concurrent terms of from five to ten years at the Massachusetts Correctional Institution at Walpole (now Cedar Junction). In this appeal, he argues that there was insufficient evidence to support the robbery conviction absent certain hearsay evidence; that he was denied his constitutional right to confront a witness against him; and that the judge erred in denying his motion to require the Commonwealth to elect which alleged act of sexual intercourse was the rape charged in the indictment. He also claims error because the judge neglected to instruct the jury that their verdicts were required to be unanimous. Further, as to the alleged rape, he argues that the judge erred in his instructions to the jury. We affirm the convictions.

We summarize the evidence. The victim was twenty-three years old at the time of trial in March, 1985. She testified to the following facts. She was working as a prostitute in Boston's "Combat Zone" when, at 2 A.M. on September 3, 1984, she encountered the defendant and Charles L. Cobb. She agreed to charge each man $25 for oral sex. She entered their automobile voluntarily and directed the defendant to drive to a parking lot near the Boston waterfront. There, she received her fee from the defendant and performed fellatio on him. Cobb, however, could not produce any money.

Sighting a police cruiser, the defendant drove to a second location in front of the Children's Museum. There, the two men searched the trunk of the automobile unsuccessfully for money. They then entered the automobile. Cobb put his hand over the victim's mouth and, with the defendant's help, forced her to the back seat. The defendant said that he would shoot her in the face if she made noise. The victim saw no gun at this time. The defendant drove the automobile while Cobb forced the victim to lie face down in the back seat. Cobb demanded that the victim perform fellatio on him; she complied.

They drove for about two hours, ultimately arriving at a boat dock. The defendant went to a boat, lit its lights, and returned to the automobile, armed with what appeared to be a gun. The defendant and Cobb forced the victim onto the boat. While Cobb waited on deck, the defendant took the victim into the cabin and "told" her to have sex with him. She refused but then engaged in "regular" sexual intercourse with the defendant.

The two men returned the victim to the automobile. Again, the defendant drove, this time to a wooded area. Cobb led the victim from the automobile, saying that the defendant wanted him to take her into the woods so that the defendant, who would follow, could photograph them engaged in sexual acts. The victim never saw the defendant or a camera, but Cobb said that the defendant wanted a picture of them engaged in anal intercourse. She refused. Cobb then asked whether she would prefer to die, and she said, "I'd rather die." Cobb said they would pretend to have anal sex. They did so.

Subsequently, Cobb told the victim that the defendant wanted him to take her money. Because she was afraid, the victim gave Cobb the $95 she had. When Cobb told her she would be left in the woods, she protested and followed him back to the automobile. She was again forced to lie face down in the back seat with Cobb, but this time she was driven to Cambridge and released.

Detective Michael Giacoppo, a member of the Cambridge police sexual assault unit, used the registration number given to him by the victim to trace the automobile to the defendant's employer in Portsmouth, New Hampshire. By telephone, Detective Giacoppo asked the defendant to come to Cambridge for an interview; without asking why, the defendant agreed to come. The detective then obtained an arrest warrant and so advised police officers of Dover, New Hampshire, where the defendant lived. An officer of the Dover police department was detailed to watch the defendant's home. When the defendant saw the officer's cruiser, he fled into a nearby wooded area. Police reinforcements were called, and the defendant was arrested at gunpoint.

The defendant made a statement in which he admitted that, on the night in question, he and Cobb had engaged a Combat Zone prostitute to perform oral sex. But he claimed that she voluntarily rode in the automobile because "she wanted to ... have further sex with them" at no charge. He admitted that he had sexual intercourse with the woman on a boat, but he did not admit to forcing himself on her. He claimed that, after leaving the boat, he drove Cobb and the woman to a house in Lexington; Cobb and the woman went inside; when the two emerged, the woman was upset; and, before she parted company with the two men, she had voluntarily returned the $50 which he claimed he had paid her.

The defendant testified in his own behalf. ² Amplifying on the statement he had given to police officers, the defendant said it was at the victim's suggestion that he first began driving while she performed consensual sexual acts with Cobb, and, once on board the boat, she had voluntarily undertaken to perform fellatio on him. Further, she had consented to vaginal intercourse; and he had neither carried a weapon nor told her that he had one. He explained his flight from the Dover police officers as an attempt to avoid officers whom he did not know until he could communicate with officers he did know.

1. Unarmed robbery. The defendant argues that, in the absence of a hearsay statement which should not have been admitted, there was insufficient evidence as matter of law to link him to the commission of this crime. He asks that a finding of not guilty be entered.

The evidence tying the defendant to the robbery of the victim was her testimony that, before Cobb took her money, he told her that the defendant wanted him to take it. ³ The Commonwealth sought to prove that Keevan was a joint venturer with Cobb in all the crimes charged, including the robbery of the victim. Thus, it was the Commonwealth's burden to demonstrate that the defendant "intentionally assisted the principal [Cobb] in the commission of the [robbery] and that he did this, sharing with the principal the mental state required for that crime." Commonwealth v. Richards, 363 Mass. 299, 307-308, 293 N.E.2d 854 (1973). For the robbery charge to have been properly submitted to the jury, there must have been sufficient evidence of each of these elements to permit a rational trier of fact, when viewing the evidence in the light most favorable to the Commonwealth, to find each element beyond a reasonable doubt. Commonwealth v. Barry, 397 Mass. 718, 719, 493 N.E.2d 853 (1986), and cases cited.

The victim testified that, when she and Cobb and Keevan were together, Keevan "gave the orders." Keevan was not far away at the time of the robbery, and his propinquity was relevant for it may inferably have "embolden[ed Cobb] to do the deed, by giving him hopes of immediate assistance," Commonwealth v. Soares, 377 Mass. 461, 472, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), quoting Commonwealth v. Knapp, 9 Pick. 495, 518 (1830). Additionally, there was evidence of flight and other acts from which the jury might have inferred Keevan's consciousness of guilt. The statement of Cobb as to Keevan's intent (see note 3 supra ) was, however, a significant part of the Commonwealth's case on the robbery indictment.

The Commonwealth does not dispute the characterization of Cobb's statement as hearsay. It points out, however, that no objection was lodged. ⁴ "The defendant cannot now require that it be disregarded. Hearsay, once admitted, may be weighed with the other evidence, and given any evidentiary value which it may possess." Mahoney v. Harley Private Hosp., Inc., 279 Mass. 96, 100, 180 N.E. 723 (1932). See Abraham v. Woburn, 383 Mass. 724, 726-727 n. 1, 421 N.E.2d 1206 (1981); P.J. Liacos, Massachusetts Evidence 74 (5th ed. 1981 & Supp. 1985). This being a criminal appeal, however, we review to inquire whether, due to the jury's consideration of objectionable hearsay, "there is a substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967). We think there is not. As stated, the evidence of a joint venture between Cobb and Keevan for all the acts in question is strong. Additionally, the statement of Cobb was probably admissible under the so-called coconspirator's exception to the hearsay rule. See Commonwealth v. Borans, 379 Mass. 117, 145-148, 393 N.E.2d 911 (1979), and authorities cited. There was no risk of a miscarriage of justice.

2. Aggravated rape. The defendant testified that the victim consented to sexual intercourse in reliance on Cobb's fraudulent representations that the two men would relocate her and employ her in prostitution without requiring a share of her earnings. Consequently, the defendant asked the judge to instruct the jury that "[o]btaining sexual intercourse through fraud and deceit is not rape." The judge declined.

The Commonwealth concedes that the requested instruction is correct as a general proposition of law, Commonwealth v. Goldenberg, 338 Mass. 377, 384, 155 N.E.2d 187 (1959); but see Commonwealth v. Helfant, 398 Mass. 214, 221 n. 5, 496 N.E.2d 433 (1986) (questioning the vitality of Goldenberg, supra ). The Commonwealth does not dispute that the defendant was entitled to the instruction; it argues instead that the instructions, as given, effectively conveyed the...