Com. v. Berrios, 06-P-1353.

• Court: Appeals Court of Massachusetts
• Citation: 886 N.E.2d 748,71 Mass. App. Ct. 750
• Docket Number: No. 06-P-1353.,06-P-1353.
• Parties: COMMONWEALTH v. Miguel BERRIOS.
• Decision Date: 22 May 2008

886 N.E.2d 748

71 Mass. App. Ct. 750

COMMONWEALTH v. Miguel BERRIOS.

No. 06-P-1353.

Appeals Court of Massachusetts, Hampden.

Argued November 5, 2007.

Decided May 22, 2008.

Karen L. Swenson, Boston, for the defendant.

Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

Present: PERRETTA, GELINAS, & KANTROWITZ, JJ.

GELINAS, J.

The defendant was indicted in July, 2004 on one count of assault and battery, G.L. c. 265, § 13A(a), and six counts of rape, G.L. c. 265, § 22(b). On motion at the close of the Commonwealth's evidence the court entered findings of not guilty on two of the rape counts. After trial, the jury found him not guilty on two of the remaining counts of rape, but guilty of assault and battery and rape with respect to Ms. B, and of rape with respect to Ms. S.¹ The attacks on the two different women occurred within a span of two months.

On appeal, the defendant argues: that his conviction of assault and battery with respect to Ms. B cannot stand, as it results in multiple punishments for the same offense in violation of double jeopardy protections; that the trial court erred in denying his motion for relief from prejudicial joinder of the indictments; that even if the indictments were properly joined, the "best interests" of justice required separate trials; that he was denied a speedy trial as guaranteed by Mass.R.Crim.P. 36, 378 Mass. 909 (1979); that trial counsel was ineffective in failing to properly investigate the case, depriving him of the right to a fair trial; and that he was denied his constitutional right to confront witnesses when the court limited cross-examination of Ms.B.

Except as to the issue of duplicative convictions, the defendant's arguments are without merit. The combined effect of statements in the Commonwealth's closing argument, the lack of a "specific act" instruction by the judge, and the judge's instruction regarding the act constituting assault and battery and the acts constituting force, created the possibility that the jury's verdict on the assault and battery count was premised on the same act used to support the force requirement for the rape conviction. In these circumstances the conviction for assault and battery cannot stand.

We recite the facts generally, reserving detail for a discussion of the issues. In early evening, Ms. B was in downtown Springfield, looking to buy drugs. She met the defendant, whom she had never seen before, and he offered to sell her crack cocaine. She agreed to a purchase, and the defendant suggested they smoke the crack together. Ms. B agreed, and the defendant led her to Riverfront Park, three-quarters of a mile away. At the park, he directed her to some stairs underneath the boardwalk, a location that would be out of view from any passersby. Ms. B "blacked out." When she awoke, she was on her back, and the defendant was on top of her with his hands around her neck, choking her.

The defendant told her that he was going to "do" her twice. He warned her that her veins were popping out of the side of her head and that he knew how to kill her if he wanted to. The defendant forced Ms. B to remove her pants. The defendant then raped her twice.

When he was done, the defendant repeatedly apologized. The two began to walk together out of the park. Ms. B "just went along" because she wanted to reach a more public setting. During their walk, the defendant suggested that they meet later at a certain restaurant a "couple blocks" away, and he would have drugs. Ms. B never went to the restaurant. Five days later, she reported the incident to a police officer. She was taken to the hospital, where she was interviewed by a police detective.

The second attack occurred some seven weeks later. The incident proceeded along lines similar to the attack on Ms. B, although in this encounter Ms. S knew the defendant. The two met outside a convenience store. The defendant invited her to go for a walk with him in the park and to smoke marijuana. Ms. S accepted the invitation, and the two walked toward Riverfront Park, which was less than one-quarter mile from the convenience store. Reaching a secluded spot, the defendant knocked Ms. S to the ground. Ms. S blacked out. The next thing she remembered was that she was on her back, and the defendant was on top of her. The defendant's hands were on her throat, and then he grabbed her by the mouth. Ms. S struggled, to no avail. The defendant ordered Ms. S to pull down her pants. She complied. He told her that if she yelled he would kill her. After raping her, the defendant started to cry, and apologized for what he had done. After the apologies, the defendant and Ms. S walked out of the park together. Before they parted, the defendant invited Ms. S to meet him at a restaurant the next day.

After Ms. S identified him from a photo array, the police arrested the defendant. Detective Chapin interviewed him. The defendant acknowledged that he knew Ms. S and that, on the night in question, he met her at the convenience store. The defendant denied, however, having any sexual contact with Ms. S. Forensic deoxyribonucleic acid (DNA) testing of the garments of Ms. S matched the defendant's DNA profile. At trial, the defendant admitted to having intercourse with the two women in Riverfront Park, but claimed that they had consented.

In its closing statement, the Commonwealth argued that the intercourse was "by force and against her will in each case," and that the jury should consider as evidence on that issue that both witnesses said the defendant had choked them. The trial judge charged the jury that the assault and battery charge with respect to Ms. B rested on the defendant's alleged choking of the victim.

Duplicative convictions. The defendant argues that his convictions of both assault and battery and rape with respect to Ms. B were duplicative, and that the conviction of assault and battery cannot stand. On authority of Commonwealth v. St. Pierre, 377 Mass. 650, 387 N.E.2d 1135 (1979), he asserts that the grabbing of Ms. B's neck and choking her and the rape are "so closely related in fact as to constitute in substance but a single crime." Id. at 662-663, 387 N.E.2d 1135. He further argues this is so especially since the Commonwealth argued that the choking was the predicate force used to accomplish the rape, and the judge instructed that for conviction of assault and battery the Commonwealth was required to prove that the defendant choked Ms. B.

Assault and battery is a lesser included offense of rape, Commonwealth v. Ortiz, 47 Mass.App.Ct. 777, 780, 716 N.E.2d 659 (1999), and a conviction of assault and battery is therefore susceptible of being duplicative of a conviction for rape. Commonwealth v. Johnston, 60 Mass.App.Ct. 13, 22, 799 N.E.2d 118 (2003). See Commonwealth v. Howze, 58 Mass.App.Ct. 147, 149-150, 788 N.E.2d 586 (2003) ("Double jeopardy principles ordinarily forbid the imposition of multiple penalties for such cognate crimes, provided they arise out of a single criminal act"). In order to sustain both convictions, the acts used to support one conviction cannot be the same acts used to support the other. See Commonwealth v. Walker, 426 Mass. 301, 303-304, 687 N.E.2d 1246 (1997). See also Commonwealth v. Sanchez, 405 Mass. 369, 381-382, 540 N.E.2d 1316 (1989). Convictions of two cognate offenses will be sustained when there is no chance that the finder of fact based the two offenses upon the same act, see Commonwealth v. Smith, 60 Mass.App.Ct. 204, 207-208, 800 N.E.2d 709 (2003), citing Commonwealth v. Johnston, 60 Mass.App. Ct. at 22, 799 N.E.2d 118, that is, where the judge instructs the jury explicitly that they must find separate and distinct acts underlying the different charges. See, e.g., Commonwealth v. Maldonado, 429 Mass. 502, 509, 709 N.E.2d 809 (1999); Commonwealth v. Santos, 440 Mass. 281, 293-294, 797 N.E.2d 1191 (2003); Commonwealth v. King, 445 Mass. 217, 226, 834 N.E.2d 1175 (2005). However, "if there is any possibility that the jury's verdicts here were premised on a single act, reversal as to the lesser offense ... would be required." Commonwealth v. Howze, 58 Mass.App.Ct. at 150, 788 N.E.2d 586.

Here, the Commonwealth, in its closing, invited the jury to use the potentially distinct act, the choking, as the underlying fact of the force required for the rape of Ms. B.² Evidence of choking is the first evidence the Commonwealth summarizes in its closing argument as applicable to the element of force in the rapes. Further, the Commonwealth never, in either its opening or closing, stated that any evidence would be, or had been, presented to prove the charge of assault and battery.

The court's instructions did not, unlike Commonwealth v. Maldonado, supra, and Commonwealth v. King, supra, make clear that the charge of assault and battery had to be based upon acts separate and distinct from those supporting the rape of Ms. B. Indeed, the judge instructed the jury that the assault and battery charge was premised on the act of choking Ms. B., and she never instructed the jury that they therefore could not use the act of choking as the predicate act of force required for the rape. She charged, rather, that "[o]n the issue of force, you consider all of the circumstances in this case." The judge went on to instruct:

"[W]hen you consider the issues of use of force and lack of consent, you may consider whether there was any evidence of attempts to restrain or confine the woman in question, of any violence by Mr. Berrios toward the woman in question...."

We think that instructions in this form, coupled with the Commonwealth's closing argument, made it possible that the jury considered the act of choking as the force required for the rape, as well as the predicate act for the assault and battery. As noted earlier, if there is any possibility that the jury's verdicts were premised on a single act, then reversal of the lesser offense is required. Commonwealth v. Howze...