Com. v. Bell, SJC-10351

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation455 Mass. 408,917 N.E.2d 740
Docket NumberSJC-10351
PartiesCOMMONWEALTH v. Kerry Van BELL.
Decision Date04 December 2009
917 N.E.2d 740
455 Mass. 408
Kerry Van BELL.
Supreme Judicial Court of Massachusetts, Worcester.
Argued September 8, 2009.
Decided December 4, 2009.

[917 N.E.2d 743]

Brandon L. Campbell for the defendant.

Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.

William W. Adams, Plainfield, for Committee for Public Counsel Services, amicus curiae, submitted a brief.


[917 N.E.2d 744]


455 Mass. 409

The defendant was convicted by a jury of offering to engage in sexual conduct for a fee (solicitation), G.L. c. 272, § 53A, and attempted rape of a child, G.L. c. 274, § 6.1, 2 The defendant appealed from his convictions, and we granted his application for direct appellate review. The defendant now contends that (1) his conviction of attempted rape of a child should be reversed because the Commonwealth presented insufficient evidence to prove that he committed an overt act establishing criminal liability for attempt; (2) his conviction of solicitation should be reversed because the statute does not criminalize third-party solicitations and is void for vagueness; (3) his conviction of solicitation was duplicative of his conviction of attempted rape of a child; (4) the judge erred in instructing the jury that a nod may constitute an affirmative response; and (5) his trial counsel was constitutionally ineffective. For the reasons that follow, we reverse the defendant's conviction of attempted rape of a child and affirm his conviction of solicitation.3

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

On March 25, 2004, the vice squad of the Worcester police department conducted an investigation and "sting operation"

455 Mass. 410

focused on the defendant. Officer Patricia Cummings posed undercover as a prostitute offering her foster child4 for sexual services to the defendant.

Cummings was instructed to telephone a specific telephone number, ask for "Ron," and indicate that she was the foster mother to a young child whom she would be willing to offer for sexual services in exchange for money. At approximately 10:49 A.M., Cummings telephoned the cellular telephone number, and the defendant answered the telephone, identifying himself as "Kerry." She asked for "Ron," and less than ten seconds later, "Ron" came to the telephone. Cummings believed "Ron" to be the same person who answered the telephone and identified himself as "Kerry." The defendant admitted at trial that he pretended to be named "Ron" during this telephone call.

When the defendant came to the telephone, Cummings told him that her girl friend had given her the telephone number, and he said, "Yeah, she's cool." Cummings asked if she could meet him in person, and they agreed to meet later that morning at 11:15 A.M. at a Honey Farms convenience store in Worcester. When

917 N.E.2d 745

the defendant stated, "We don't have to do this if the kid's not going to be with you," Cummings told him to postpone the meeting to 11:30 A.M., so that she could arrive with the child.

She then drove to the convenience store and waited for the defendant. Eventually, the defendant approached her car and said, "I found you." When she got out of her vehicle, he told her that she did not fulfil the agreement because she did not bring a child with her to the meeting. He told her that she was "making it too hard for him," and she said that she had never done this before.

Cummings and the defendant then walked to his vehicle, where she asked him for fifty dollars "for good faith." The defendant refused to pay fifty dollars because she "did not have the kid." When they got into the defendant's vehicle, he stated, "I have a lot at stake, because I'm a professional." Cummings responded that she also did not want to get into trouble.

The defendant then began to ask for details about Cummings's foster child, including details about her age, demeanor, and sexual history. Cummings answered his questions and told him that she did not want the child to be injured, and asked him what

455 Mass. 411

he wanted to do. The defendant said he wanted "intercourse," and said that he had done this before.

After these negotiations, the defendant asked where the child was located, and Cummings said she was on Elm Street by Elm Park. She told the defendant that she would drive there and he could follow. The defendant agreed, and then they negotiated a fee for the child. Cummings told the defendant she would not take less than $200. In response to this, the defendant nodded his head up and down.

At that point, Cummings stepped out of the defendant's vehicle and walked toward her own vehicle. She gave a prearranged signal to other officers who were nearby, and they converged on the defendant's vehicle as he began to pull out of his parking spot and turn toward the exit of the parking lot, in the direction of Elm Park.

The officers asked the defendant to get out of his vehicle, and then arrested him. At the Worcester police department, the officers found $211 in cash on his person. After receiving Miranda warnings and waiving his rights, the defendant discussed his attraction to younger girls with Sergeant Michael Cappabianca, and told him that he "was asking for a young girl and [Officer Cummings] said she had a five year old."5

2. Sufficiency of the evidence of attempted rape of a child. The defendant argues that his conviction of attempt should be reversed because the Commonwealth failed to present sufficient evidence of an "overt act." The defendant did not move for a required finding of not guilty, so we consider whether failure to file such a motion created a substantial risk of a miscarriage of justice. See Commonwealth v. Grandison, 433 Mass. 135, 140 n. 8, 741 N.E.2d 25 (2001), quoting Commonwealth v. McGovern, 397 Mass. 863, 867, 494 N.E.2d 1298 (1986) ("We consider the legal sufficiency of the evidence even if a defendant fails to move for a required

917 N.E.2d 746

finding of not guilty because `findings based on legally insufficient evidence are inherently serious enough to create a substantial risk

455 Mass. 412

of miscarriage of justice'"); Commonwealth v. Keita, 429 Mass. 843, 844, 712 N.E.2d 65 (1999). Because the defendant's first claim of error involves the sufficiency of the evidence against him, we look at the evidence in the light most favorable to the Commonwealth, along with inferences that could reasonably be drawn.6 Commonwealth v. Sandler, 368 Mass. 729, 740, 335 N.E.2d 903 (1975).

The crime of attempt is statutorily defined in G.L. c. 274, § 6. See note 1, supra. The elements required for a finding of attempt are (1) specific intent, (2) an overt act, and (3) nonachievement of the substantive crime. See Commonwealth v. Ortiz, 408 Mass. 463, 470, 560 N.E.2d 698 (1990). This court has interpreted this statute consistently since the court's opinion authored by Chief Justice Holmes in Commonwealth v. Kennedy, 170 Mass. 18, 48 N.E. 770 (1897), and Commonwealth v. Peaslee, 177 Mass. 267, 59 N.E. 55 (1901) (Peaslee), requiring a showing that the defendant, after preparing to commit the crime, has undertaken overt acts toward fulfilling the crime that "come near enough to the accomplishment of the substantive offence to be punishable." Peaslee, supra at 271, 59 N.E. 55.7

In Peaslee, the court described two classes of cases of attempt. As to the first class, the court noted:

455 Mass. 413

"The most common types of an attempt are either an act which is intended to bring about the substantive crime and which sets in motion natural forces that would bring it about in the expected course of events but for an unforeseen interruption ... or an act which is intended to bring about the substantive crime and would bring it about but for a mistake of judgment in a matter of nice estimate or experiment.... In either case the would-be criminal has done his last act."

Id. at 271, 59 N.E. 55.

The court went on to address the other class, the problem area of cases that fell short of the "last act" category or cases that were still in the "preparations" stage.

917 N.E.2d 747

With respect to those cases, the court stated:

"[N]ew considerations come in when further acts ... are necessary before the substantive crime can come to pass. In this class of cases there is still a chance that the would-be criminal may change his mind. In strictness, such first steps cannot be described as an attempt, because that word suggests an act seemingly sufficient to accomplish the end, and has been supposed to have no other meaning.... That an overt act although coupled with an intent to commit the crime commonly is not punishable if further acts are contemplated as needful, is expressed in the familiar rule that preparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a [crime] although there is still a locus penitentiae[8] in the need of a further exertion of the will to complete the crime. As was observed in a recent case, the degree of proximity held sufficient may vary with circumstances, including among other things the apprehension which the particular crime is calculated to excite. Commonwealth v. Kennedy, 170 Mass. 18, 22, 48 N.E. 770 (1897)." (Emphasis added and citation omitted.)

Peaslee, supra at 271-272, 59 N.E. 55.

The case now before us falls into that second class of cases

455 Mass. 414

and requires us to determine if the evidence of preparations taken by the defendant proceeded sufficiently close to the substantive crime to amount to an attempt. Factors to take into account in determining how proximate the overt act must be to the commission of the...

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