Com. v. Armstrong

• Decision Date: 03 December 2008
• Docket Number: No. 07-P-1318.,07-P-1318.
• Citation: 897 N.E.2d 105,73 Mass. App. Ct. 245
• Parties: COMMONWEALTH v. Gordon K. ARMSTRONG, Jr.
• Court: Appeals Court of Massachusetts

897 N.E.2d 105

73 Mass. App. Ct. 245

COMMONWEALTH v. Gordon K. ARMSTRONG, Jr.

No. 07-P-1318.

Appeals Court of Massachusetts, Plymouth.

Argued April 17, 2008.

Decided December 3, 2008.

Cathleen E. Campbell, Salem, for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

Present: DUFFLY, ARMSTRONG, & BERRY, JJ.

BERRY, J.

This appeal follows a jury-waived trial in which the trial judge found the defendant guilty on seven indictments charging forcible rape of a child and one indictment charging assault with intent to rape a child. See G.L. c. 265, §§ 22A, 24B.

One of the issues presented by the defendant on appeal is unique to the first two rape indictments. These two charges arise out of acts of digital and oral rape of the victim that occurred during a cross-country trip at an unknown location in a State outside Massachusetts. The Commonwealth submits that, because the trip originated in Massachusetts, with a return to Massachusetts where the defendant continued to engage in acts of rape against the victim, and because no State can be determined as the locus of the crimes, then Massachusetts must be presumed to have jurisdiction over, and venue for trial of, these two rapes. We address this issue in part 1, infra.

The other appellate issues, involving the remaining five convictions of forcible rape and the one conviction of assault with intent to rape, regard the defendant's claims that: (a) there was insufficient evidence proving the element of force required under G.L. c. 265, § 22A¹; and (b) the prosecutor's closing improperly referenced certain entries in the victim's medical records, which records had been admitted by agreement. We address these issues in parts 2 and 3, infra.

The trial evidence may be summarized as follows. The defendant and his family lived next door to the victim. The victim's stepmother is the defendant's niece. Beginning when the victim was eleven years old, and continuing until she was fourteen (from 2002 through March, 2005), she spent a great deal of time at the defendant's house in Carver, playing with two of the defendant's sons, who were close to her in age. The defendant, who was in his early fifties, regularly drove his sons and the victim to school, and the victim went over to the defendant's house three or four days per week after school. In addition, from time to time during weekdays, the victim slept over at the defendant's house, and also stayed there on many weekends.

When she was eleven years old, the victim traveled on a cross-country trip to Oregon in the defendant's family camper with the defendant, his wife, and three of his sons. One night as she slept, the defendant came to the victim's bed in the camper. The defendant removed her shorts and put his fingers inside her "private," moving his fingers in and out. Then, the defendant spread the victim's legs, put his face between her legs, and placed his tongue in her vagina. The victim pretended to remain sleeping. The victim recollected that the events happened during travel to Oregon, not on the way back to Massachusetts.

The defendant had done similar things to the victim before the Oregon trip, when she stayed at the defendant's house. Sometimes during these events, the victim would tell the defendant to stop, and he would. Otherwise, he would simply stop on his own and return to his bedroom. The victim did not tell anyone what had happened, did not know that these things were wrong, and just "accepted it."

After the Oregon trip, the victim continued spending time during the day, and sleeping overnight, at the defendant's house. In testifying about the rapes, the victim, in certain descriptions of the events, connected the rapes to the rooms in the house where the acts were done. There was a finished basement room that two of the defendant's sons used as a bedroom. On one night, the victim remembered lying on the floor near one of the boys' beds when the defendant came downstairs. As he knelt on the floor, the defendant first placed his fingers in the victim's vagina, and then separated her legs and put his tongue into her vagina, in the manner he had on the cross-country trip. The living room was the place of other rapes, again in which the defendant engaged in digital penetration of the victim's vagina and oral sex. (The defendant often slept in a chair in the living room because he had lymphedema, an ailment which causes swelling of his extremities, particularly his legs.)

In March, 2005, when the victim was fourteen years of age, there was a final indecent assault upon the victim. Just before Easter, the victim, with her half-brother, stayed over at the defendant's house on a school night. As the victim was sleeping on the living room couch, close to midnight, the defendant, who had been in his chair, approached her. He began to place his fingers in her vagina. She told him that she had to be up early for school the next day. The defendant stopped and returned to his chair. However, a few hours later that night, the defendant approached again and began to climb on top of the victim. She placed her hands against his chest, pushed him away, and said no. The defendant stopped. Thereafter, the victim disclosed the defendant's acts, and an investigation followed.

In addition to her testimony describing the assaults upon her, the victim related a series of conversations she had had with the defendant, including his statements to her that: he had had similar experiences with the victim's stepmother; he had not had sex with his wife in twenty years; and he loved the victim so much that his wife was jealous.

The defendant testified. He denied the allegations. The defendant stated that he had not been present at his house during weekends, but rather was working on Cape Cod. He would, he said, leave his house in Carver on Wednesdays and stay on Cape Cod until Monday mornings. The defendant's wife testified that there was only one non-weekend night when the victim stayed at the defendant's house, and that this was a March, 2005, sleepover (which was the night of the final sexual assault with intent to rape). However, on cross-examination, the defendant's wife acknowledged that the victim may have slept over on a weeknight during the summers, and that the victim was at her house almost every day.

Another prong of the defense rested on the defendant's medical condition. The defendant testified that he cannot kneel for long periods of time, and that, if he does, he will require assistance standing upright, or it may take a couple of minutes for him to rise. It was suggested that this condition would have hindered the defendant from perpetrating the indecent acts described by the victim.

1. The out-of State rapes. a. The jurisdictional issue. As previously noted, two of the acts of rape, which were the predicates for the first two indictments, occurred outside of Massachusetts. The defendant challenges his convictions of these two crimes on the basis that the indictments were improperly returned in Massachusetts, and that our courts lacked jurisdiction to try him for these offenses. Given the lack of Massachusetts jurisdiction, the defendant contends, his constitutional rights were violated.²

"It is elementary that it must be shown that jurisdiction lodged in the courts of Massachusetts before the defendant can be found guilty of the offence charged." Commonwealth v. Fleming, 360 Mass. 404, 406, 274 N.E.2d 809 (1971). "Criminal laws have no extraterritorial validity. They will not be enforced outside the jurisdiction of the sovereign by whose authority they are enacted. That is a general principle." Commonwealth v. Booth, 266 Mass. 80, 84, 165 N.E. 29 (1929). "The general rule, accepted as `axiomatic' by the courts in this country, is that a State may not prosecute an individual for a crime committed outside its boundaries." Vasquez, petitioner, 428 Mass. 842, 848, 705 N.E.2d 606 (1999). Accord Commonwealth v. DiMarzo, 364 Mass. 669, 671, 308 N.E.2d 538 (1974) ("With reference to the question of jurisdiction, there can be no doubt that the judge had no power to try the defendant for crimes committed out of State"); Commonwealth v. Gilbert, 366 Mass. 18, 28, 314 N.E.2d 111 (1974) (the jurisdiction of a Massachusetts court depends on "[w]hether a criminal act occurred within the territorial boundaries of the Commonwealth").

Notwithstanding these jurisdictional principles, the Commonwealth submits on appeal that these two rapes were subject to prosecution in Massachusetts because they fall within a very limited exception allowing a State extraterritorial jurisdiction over a criminal offense: the "effects" doctrine, which was described by Justice Holmes in Strassheim v. Daily, 221 U.S. 280 285, 31 S.Ct. 558, 55 L.Ed. 735 (1911).³ According to the Holmesian analysis defining this doctrine, "[a]cts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect...." Ibid. See the analysis of the effects doctrine in Vasquez, petitioner, 428 Mass. at 848-849, 705 N.E.2d 606, discussed infra.

For the reasons that follow, we determine that the effects doctrine is not applicable to these two out-of-Massachusetts extraterritorial rapes. The Commonwealth's invocation of the effects doctrine in this case would not only be in conflict with the aforesaid existing jurisdictional precedent, but also would be so expansive a reading of the effects doctrine as to stretch Massachusetts criminal law jurisdiction into a hitherto unrecognized realm.

Both Justice Holmes's Federal enunciation of the effects doctrine in Strassheim and the Massachusetts analysis of the doctrine in Vasquez arose in the context of habeas corpus challenges to extradition warrants, and focused on whether a crime had been committed within the jurisdiction of the requesting State from which the...