Com. v. Ascolillo

• Decision Date: 01 August 1989
• Parties: COMMONWEALTH v. Charles ASCOLILLO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 570

541 N.E.2d 570

405 Mass. 456

COMMONWEALTH v. Charles ASCOLILLO.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued May 2, 1989.

Decided August 1, 1989.

Brownlow M. Speer, Committee for Public Counsel Services, Boston, for defendant.

Michael Fabbri, Asst. Dist. Atty., for Com.

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

LIACOS, Chief Justice.

The defendant, Charles Ascolillo, appeals from his convictions of rape, kidnapping, and assault and battery by means of a dangerous weapon of a twenty-four year old woman. We transferred the case to this court on our own motion. We affirm the judgments of conviction below.

The victim in this case testified that, on the evening of October 10, 1985, she went to two restaurants in Billerica and a party in Chelmsford, and had a total of three alcoholic beverages. She arrived at the defendant's home in Billerica about 5 A.M. on October 11, and found the defendant, the defendant's wife, and the defendant's brother drinking and smoking cocaine. She had known the defendant and his wife for twelve years and considered them friends. She sat with them, playing cards, and watching television. During this time, the victim and the defendant drank vodka and cranberry juice. The victim also snorted a small amount of cocaine. About 7:30 A.M., the defendant's sister arrived at the house. At some point that morning, the defendant's brother and sister went to bed. The defendant's wife left to go to work about 11 A.M.

The defendant then asked the victim if she "wanted to do a line of coke." The victim responded that she did. She followed the defendant into a room in the back of the house. When she entered the room, the defendant was sitting on an opened sofa bed, wearing a T-shirt and underwear. After they talked and "did a line of coke," he grabbed her from behind and pulled her onto the bed. They struggled. She was crying, screaming, and trying to get away. The defendant pinned her to the bed, with his knees on top of her arms on either side of her head. According to the victim the defendant sought to force her to submit to sodomy. She resisted. He threatened to kill her if she was not quiet. He ripped the buttons off her blouse, grabbed a knife from a cabinet next to the sofa bed, and put it near her neck and then her eye. When she pushed the knife away, she cut her index finger. He told her to "blow him" or he would cut her. She vomited. He again tried to force her to submit. She turned her head, however, and he ejaculated on the side of her face. He then put his penis in her mouth. She hit him with a glass and struggled with him. He told her he would kill her if she told anyone. When she left the defendant's house, it was about 2 P.M.

Other evidence was submitted which corroborated the victim's testimony. Included in this corroborative evidence was the testimony of Inspector Richard Howe of the Billerica police department. He testified that, on the same day, he observed the victim's blouse and jacket, and a small tear in the blouse's left underarm. Howe testified that the victim had scratch marks on the left and right sides of her neck, and that her finger was cut. Howe also testified as a fresh complaint witness that the victim told him the defendant had raped her.

Howe further testified that he conducted a search of the defendant's home and arrested the defendant. The police seized drug paraphernalia which laboratory tests showed to have cocaine residue on them, a blood-stained sheet from the sofa bed, a blood-stained pillow case from the sofa bed, and seven assorted small pocket knives located in the shelf area to the side of the sofa bed.

The defendant testified in his own defense that he and the victim had engaged in consensual oral sex. He testified that they had had consensual sexual intercourse on numerous prior occasions, and that he provided her with cocaine in exchange for sexual favors. He testified that, at some point on October 11, he refused to give the victim any more cocaine and that she "flipped out," yelling, screaming, and tearing the house apart. He thought she was having a seizure from a cocaine overdose. He testified that she said before she left, "I'll get you for this."

The defendant raises three issues on appeal: (1) the judge's denial of the defendant's challenge for cause of a juror who was a police officer; (2) the admission in evidence of seven small knives found at the defendant's house; and (3) the judge's instructions to the jury concerning the victim's consent.

1. Selection of the Jury.

During the course of jury empanelment, one prospective juror came forward in response to questioning of the venire.

THE JUDGE: "Okay.... [W]hat did you raise your hand to, please?"

THE JUROR: "I'm a police officer, and I have been for 26 years, and also was a victim of an assault and battery."

THE JUDGE: "Outside of your police duties?"

THE JUROR: "No, on my duties."

THE JUDGE: "Oh, on your duties. Yes. Well, let's see. You're a police office where? In Melrose?"

THE JUROR: "Melrose."

THE JUDGE: "Well, is the experience you had, either one of those experiences, does [that] affect your ability to be fair and impartial trying this case?"

THE JUROR: "I don't think it would, but somebody else might."

THE JUDGE: "Well, it's--whether they think it is or not is not the point. The point is whether you think--"

THE JUROR: "No, I don't think so."

THE JUDGE: "All right. I find the juror stands indifferent. Thank you. You may be seated."

Defense counsel objected, saying, "I would ask this juror be excused for cause. I note ... the juror questionnaire ... indicates essentially what he told the court, that he is presently working as a police sergeant for the City of Melrose since 1961, and that he was further a government witness in numerous criminal cases.... [H]e's still actively involved in law enforcement in Middlesex County...." The judge stated that his appearances in court as a witness were the nature of his job and refused to excuse him for cause.

Defense counsel subsequently renewed his challenge to this juror saying, "Your honor, ... I'd ask the court again to reconsider excusing [the juror] for cause." The judge denied the request. The defendant peremptorily challenged the juror. Later, having exhausted his peremptory challenges, the defendant requested an additional peremptory challenge. The request was denied.

The defendant argues on appeal that this prospective juror should have been excused for cause. We have stated that: " 'The defendant undertakes a heavy burden in attempting to persuade an appellate court that there was error in a denial of a challenge for cause.' United States v. Gullion, 575 F.2d 26, 29 (1st Cir.1978).... 'If the trial judge who conducted the voir dire ..., believed that he [or she] had impanelled a jury of twelve open-minded, impartial persons, then we will set aside his [or her] action only where juror prejudice is manifest.' United States v. McNeill, 728 F.2d 5, 9 (1st Cir.1984)." Commonwealth v. Lattimore, 396 Mass. 446, 449, 486 N.E.2d 723 (1985), S.C., 400 Mass. 1001, 507 N.E.2d 754 (1987). A trial judge's initial determination that a juror stands indifferent will not be disturbed on appeal unless the defendant demonstrates that there was a substantial risk that the case would be decided in whole or in part on the basis of extraneous issues. Id.

The defendant argues that the prospective juror's characteristics--a police officer in Melrose, a city in Middlesex County, who had on numerous prior occasions been a witness in criminal cases--demonstrate the profound unfairness in the notion that he could sit as a juror in the case at bar. ¹ We disagree. See Commonwealth v. Lattimore, supra (that juror saw brother-in-law, a retired police officer, on a daily basis insufficient to establish partiality and insufficient to support challenge for cause); Commonwealth v. Coleman, 389 Mass. 667, 675, 452 N.E.2d 202 (1983) (judge properly found indifferent juror who had been summer police officer who stated that this would not affect his impartiality); Commonwealth v. Wilborne, 382 Mass. 241, 254, 415 N.E.2d 192 (1981) (judge found indifferent two jurors--a special police officer for a private corporation and a voluntary auxiliary defense police officer--who stated that their police associations would not affect their consideration of the evidence); Commonwealth v. Amazeen, 375 Mass. 73, 83, 375 N.E.2d 693 (1978) (judge found indifferent a prospective juror who knew prosecutor, was a member of the same church parish, went to the same high school, and stated that connections would not affect his impartiality). See also G.L. c. 234A, § 3 (1988 ed.) ("No person shall be ... excluded from serving as ... a juror because of ... [his or her] occupation"). We decline to adopt a rule that the mere fact that a prospective juror is a police officer, in the absence of a showing of prejudice or partiality, or connection with the particular facts involved at trial, would form the basis to sustain a challenge for cause.

We conclude that the judge acted properly, within his discretion, in refusing to excuse the juror for cause. "Where, as here, the judge who had the opportunity to observe the prospective juror, makes a determination that the juror is indifferent after exploring the grounds for a possible claim that the juror was not impartial, we cannot conclude, in the absence of any affirmative evidence to the contrary, that the judge abused his discretion." ² Commonwealth v. Amazeen, supra.

2. Admission in Evidence of Weapons Found in the Defendant's House.

The defendant argues that it was reversible error for the judge to admit in evidence seven small pocket knives seized from the defendant's house. There was evidence that all of the knives were found near the sofa bed where the alleged crimes were committed. Nevertheless, the defendant argues that at least six of the knives had no...