Commonwealth v. Mccoy

• Citation: 456 Mass. 838,926 N.E.2d 1143
• Decision Date: 20 May 2010
• Docket Number: SJC-10530.
• Parties: COMMONWEALTHv.Ronald McCOY.
• Court: United States State Supreme Judicial Court of Massachusetts

456 Mass. 838

926 N.E.2d 1143

COMMONWEALTHv.Ronald McCOY.

SJC-10530.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Feb. 9, 2010.

Decided May 20, 2010.

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Joseph J. Mazza, Waltham, for the defendant.

Janis DiLoreto Noble, Assistant District Attorney (Cory S. Flashner, Assistant District Attorney, with her) for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, BOTSFORD, & GANTS, JJ.

SPINA, J.

The defendant was convicted by a jury of kidnapping, rape, and assault and battery.¹ In a memorandum and order pursuant to its rule 1:28, the Appeals Court reversed the defendant's convictions on all charges, holding that the testimony of the victim's mother and the sexual assault nurse examiner (SANE) constituted improper first complaint testimony that created a substantial risk of a miscarriage of justice. Commonwealth v. McCoy, 73 Mass.App.Ct. 1127, 902 N.E.2d 434 (2009). We granted the Commonwealth's application for further appellate review.

The defendant contends that his convictions should be reversed because (1) the trial judge improperly denied his request for additional peremptory challenges, resulting in a biased jury; (2) after the testimony of a designated first complaint witness, the erroneous allowance of cumulative first complaint testimony without limiting instructions created a substantial risk of a miscarriage of justice; and (3) the kidnap and assault convictions are lesser included offenses of the rape charge and should be dismissed. For the reasons that follow, we affirm the convictions.

1. Facts. We recite facts that the jury could have found, reserving the development of other facts to the discussion of specific issues.

On February 26, 1996, the victim spent the evening at a friend's house, where both women used “crack” cocaine. Between 8 and 9 p.m., she left that friend's house and went across the street to the apartment of another friend, where, prior to leaving at 2 or 3 a.m., she consumed two “shots” of alcohol and four beers. She testified that, at that time, neither the crack cocaine nor the alcohol affected her “ability to perceive things.” She intended to walk to her home in the Roxbury section of Boston, where she lived with her mother and children. However shortly after the victim left her friend's apartment, a red pickup truck pulled over in front of her. The driver called out her name, asked her where she was going, and offered her a ride home. She recognized the driver of the truck as an acquaintance she knew through her boy friend, and accepted the offer for a ride. At trial, she identified the defendant as the driver of that truck.

The victim entered the truck and agreed that the defendant could first pick up his girl friend before taking her home. However, he drove down a dead-end street near Franklin Park, turned the truck around, and turned off the ignition and lights. At that point, the victim reached for the door in an attempt to get out of the truck, but the defendant grabbed the collar of her shirt and jacket, preventing her from leaving. He pulled her head toward his penis, which was exposed through the open zipper of his pants. She resisted and asked him to take her home. As she attempted to resist, he slapped her on the lip and left side of her face, pushing her down onto the seat of the truck.

The defendant then told the victim to pull her pants down. When she refused, he hit her again and she briefly lost consciousness. She awoke with one leg of her pants removed and the defendant on top of her, engaging in sexual intercourse. He said that he would have killed her if he had a knife or gun, and forcibly kicked her out of the truck with his boots. When she landed on the ground outside the truck, the defendant drove away. She put her pants back on and crawled toward the main street, where she lay down in the road until an unidentified man picked her up and drove her to a police station.

The victim arrived at the police station around 4:30 a.m. and spoke with Officer Bernard Doyle, who was the desk officer. She related details from the assault and described her assailant and his vehicle. Doyle noticed that her lower lip was swollen. He summoned an ambulance, which took her to Boston Medical Center, to complete a rape kit examination and interview with a SANE nurse. After the examination, she returned home with her mother.

That day, Detective Thomas Keeley commenced the initial investigation of the rape. This investigation included an interview with the victim and a visit to the area of the attack. The initial investigation did not yield any leads, and the victim eventually indicated her desire to drop the case.

In 1999, the victim was leaving an Alcoholics Anonymous meeting when she recognized the defendant in an elevator. They had a brief exchange; he introduced himself as “Ron” and confirmed that he occasionally drove a red truck, which belonged to his employer. She contacted the police, who told her to call 911 if she saw him again.

In June, 2001, the Boston police crime laboratory notified Keeley that the deoxyribonucleic acid (DNA) profile from the victim's rape kit matched the known DNA profile of the defendant. He gave a blood sample on July 1, 2002, and the victim gave a blood sample on July 24, 2002. Further testing confirmed the link.

2. Juror selection. The defendant's first argument on appeal is that the judge erred in limiting the parties to four peremptory challenges, allowing biased jurors to be seated, and conducting insufficient and limited voir dire questioning, thereby precluding a fundamentally fair trial by an impartial jury. These arguments are without merit.

During jury selection, defense counsel moved for two additional peremptory challenges, for a total of six. He claimed that because more than thirty people had raised their hands when asked whether they or anyone in their families had ever been the victim of a violent crime, including sexual assault, additional peremptory strikes were needed in order to choose an impartial jury. The judge denied the request.

A defendant indicted for a crime not punishable by imprisonment for life is entitled to four peremptory challenges, although the judge may, as a matter of discretion, allow motions for additional challenges. See Mass. R.Crim. P. 20(c)(1), 378 Mass. 889 (1979); Commonwealth v. Burden, 15 Mass.App.Ct. 666, 674-675, 448 N.E.2d 387 (1983). Here, the judge did not abuse his discretion in denying the defendant's request, as the defendant did not show a concrete need for additional challenges, particularly where he did not exercise his final peremptory challenge until the last juror was being seated and did not inform the judge that he would have exercised a peremptory challenge on a seated juror had he been afforded additional challenges. See Commonwealth v. Leahy, 445 Mass. 481, 497, 838 N.E.2d 1220 (2005) (no error where defendant did not exercise his last peremptory challenge until final seat on jury was being filled, thus failing to show that he was forced to accept juror he would have peremptorily challenged).

The defendant next argues that the judge conducted insufficient voir dire questioning of six specific venire members, resulting in prejudice. “The scope of voir dire rests in the sound discretion of the trial judge, and a determination by the judge that a jury are impartial will not be overturned on appeal in the absence of a clear showing of abuse of discretion or that the finding was clearly erroneous.” Commonwealth v. Lopes, 440 Mass. 731, 736, 802 N.E.2d 97 (2004). See Commonwealth v. Seabrooks, 433 Mass. 439, 443, 743 N.E.2d 831 (2001) (“we will not conclude that the judge abused his discretion by empanelling the juror unless juror prejudice is manifest”). Where 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. Cf. Commonwealth v. Auguste, 414 Mass. 51, 53-58, 605 N.E.2d 819 (1992); Commonwealth v. Zakas, 358 Mass. 265, 268, 263 N.E.2d 446 (1970). If the issue has been preserved, prejudice generally is shown by the use of a peremptory challenge to remove the juror who allegedly should have been excused for cause together with evidence that the defendant later was forced to accept a juror he would have challenged peremptorily but was unable to because his peremptory challenges had been exhausted. See Commonwealth v. Auguste, supra at 58, 605 N.E.2d 819; Commonwealth v. Susi, 394 Mass. 784, 789, 477 N.E.2d 995 (1985).

First, the defendant requested that the judge inquire into Juror A's potential bias because the juror's brother was a police officer. The judge declined to do so because the juror did not indicate any partiality during the questioning of the entire venire. A prospective juror who does not come forward in response to a judge's questioning of the full venire is “[impliedly representing] that he or she is not biased.” Commonwealth v. Duddie Ford, Inc., 409 Mass. 387, 393, 566 N.E.2d 1119 (1991). The defendant did not challenge Juror A for cause.

Next, Juror B indicated that the defendant looked familiar, and she may have seen him at a check cashing establishment where she was employed. After questioning, the judge found this juror to be impartial, and the defendant did not challenge her for cause. He argues that Juror B had raised her hand, indicating she or a family member had been a victim of violent crime, and failure to question her on this was error. However, the juror stated during the voir dire that she had nothing else to indicate to the court and that she had not raised her hand for any other reason.

Juror C informed the judge that she had been a victim of a sexual assault in college, and the judge questioned her on her ability to be impartial as a result. The defendant argues that Juror C should have been...