Com. v. Blache

• Decision Date: 08 February 2008
• Docket Number: SJC-09909.
• Citation: 450 Mass. 583,880 N.E.2d 736
• Parties: COMMONWEALTH v. David BLACHE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

880 N.E.2d 736

450 Mass. 583

COMMONWEALTH v. David BLACHE.

SJC-09909.

Supreme Judicial Court of Massachusetts, Essex.

Argued October 1, 2007.

Decided February 8, 2008.

Jennifer Marie Petersen & Karl R.D. Suchecki for the defendant.

Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

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

BOTSFORD, J.

A jury in the Superior Court convicted the defendant on an indictment charging rape, in violation of G.L. c. 265, § 22 (b). The Appeals Court affirmed the defendant's conviction in an unpublished memorandum and order issued pursuant to its rule 1:28. Commonwealth v. Blache, 67 Mass.App.Ct. 1105, 853 N.E.2d 221 (2006). Thereafter, we granted the defendant's application for further appellate review. The defendant concedes the fact of intercourse but claims it was consensual, and he argues that errors in his trial require the reversal of his conviction.

In particular, the defendant challenges the judge's instructions to the jury concerning the elements the Commonwealth must prove to obtain a conviction of the crime of rape; he focuses in significant part on the instructions concerning the complainant's possible incapacity to consent. Since at least 1870, we have recognized that in cases of rape, while the Commonwealth must prove the complainant's lack of consent as an element of the crime, there are circumstances in which this element may be satisfied by proof that the complainant lacked the capacity to consent. Commonwealth v. Burke, 105 Mass. 376 (1870) (Burke). In this case, we return to Burke and examine once again circumstances that may affect a complainant's capacity to consent, and whether, as Burke suggests, the defendant's knowledge of the complainant's incapacity must be shown. We conclude that the judge's instructions failed to explain adequately what must be established about a complainant's condition before the complainant may be deemed incapable of giving or withholding consent. For the reasons explained below, we reverse the defendant's conviction.

1. Background. There was evidence at trial from which the jury could have found the following. On August 17, 2000, the complainant, who was twenty-six years old, went out with a female friend to a bar in Haverhill. The complainant was five feet, two inches tall and weighed 110 pounds. Before leaving home at around 7 P.M., the complainant smoked marijuana and took an antianxiety medication called Klonopin. She had not eaten any food all day. The complainant had "[a] couple" of alcoholic drinks at the first bar she visited, and drank "[a] lot" at a second bar, where she spent the latter part of the evening. Between 11:30 P.M. and midnight, the complainant and her friend were joined by David MacRae, whom the complainant had been dating for about one week, and his friend Allan Castro. By that time, the complainant was "very drunk," and she had only intermittent memories of the remainder of the evening. When the group left the bar shortly before it closed, the complainant was "causing a scene," was argumentative, had difficulty walking, and fell twice. The complainant's friend took her keys to drive her home. Ultimately, however, Castro drove the complainant's friend home in the complainant's truck, and then he, MacRae, and the complainant drove to MacRae's house in Methuen.

At MacRae's house, the complainant continued to behave belligerently. She attempted to leave MacRae's house but drove her truck into his fence and then backed up into the house itself, at which point MacRae took her keys. Castro telephoned the police, and MacRae told them he needed assistance with an unwanted and very intoxicated female guest. Before the police arrived, the complainant returned to the house and "passed out" for some time.

The Methuen police dispatched the defendant, Officer David Blache, to respond to the call; he arrived at MacRae's house just before 2 A.M. When the defendant arrived, the complainant woke up; she was "still drunk," and Castro saw her fall "straight back and hit her head . . . [o]n the wall." The defendant spent about forty-five minutes at the house gathering information for an accident report and arranging for the complainant's truck to be towed. During this time, according to MacRae, Castro, the defendant, and the tow truck driver, the complainant exhibited sexually aggressive behavior toward the defendant. She touched him, tried to kiss him and "grab[] his crotch," asked him if he wanted to have sex with her, licked the windows of his police cruiser, and pulled down her pants to show the defendant her genitals. Witnesses also testified that at this time she was still drunk; she slurred her speech; and she pulled down her pants and began to urinate in the street in front of MacRae's house when he refused to allow her back inside to use his bathroom. While the defendant was speaking with MacRae, he allowed the complainant to sit, in the front seat of his cruiser because she was cold; after she twice turned on the cruiser's lights and siren, he transferred her to the back seat.

After arranging to have the complainant's truck towed, the defendant obtained permission from police headquarters to transport her home to Haverhill because she did not have enough money to pay for a taxi. The complainant testified that she did not remember leaving MacRae's house in the cruiser, and that the next thing she remembered was the car pulling up next to a dumpster. Once the car stopped, the defendant opened the driver's side rear door, pulled down the complainant's pants, and vaginally raped her in the hack seat of the cruiser. She testified that she told him she "didn't want to do that," and tried to kick the defendant and the partition between the front and rear seats, but she was unable to open the opposite door because there was no interior handle. She further testified that the defendant then drove her home, and when he dropped her off he warned her that the police have a "code of silence" and they would not believe her.

The defendant also testified at trial. He admitted having intercourse with the complainant, but he claimed that it was consensual and occurred at her house. According to the defendant, he dropped the complainant at home and cleared the call with headquarters, then he knocked on her door and asked to use her bathroom. He testified that when he emerged from the bathroom, the complainant was completely naked; they embraced, she performed oral sex on him, and they had consensual intercourse on her couch.

Although the complainant did not remember making any telephone calls after she returned home, the prosecutor played recordings of two 911 calls she placed to the Haverhill police. Additionally, Castro testified that he answered two calls from the complainant at MacRae's house about one-half hour after the complainant had left with the defendant. In the first call, she said in a "bragging" or "sarcastic" tone, "Tell Dave [MacRae] thanks for the best fuck of my life," and hung up. In the second call, a few minutes later, she said, "Tell Dave I'm going to go for the whole rape thing," and hung up.

Haverhill police responded to the complainant's 911 calls at about 3:30 A.M. and convinced her to go to the hospital for a sexual assault examination. Two female officers who assisted the complainant that morning' testified as fresh complaint witnesses¹; they described the complainant as quite upset and still intoxicated. The vaginal swab taken from the complainant as part of the examination contained sperm cells, but the oral swab did not. The deoxyribonucleic acid (DNA) of the sperm cells collected matched a blood sample submitted by the defendant. Sperm was also detected in a stain on the zipper area of the defendant's uniform pants but not in the back seat of the cruiser. The complainant's blood was drawn at 7:30 A.M.; testing revealed a blood alcohol level at that time of 0.14 per cent, as well as evidence of marijuana.² Using retrograde extrapolation, a toxicology expert testified that the complainant's blood alcohol level at 2:30 to 3 A.M. would have been between 0.176 and 0.24 per cent, a level that typically causes disorientation, loss of judgment, impaired perception, lethargy, imbalance, slurred speech, loss of memory, impaired comprehension, and confusion.

In her charge to the jury, the judge touched on the issue of intoxication twice, first in defining the element of force required for the crime of rape, and later in explaining the crime's additional element of lack of consent on the part of the complainant. In explaining force, the judge instructed that "[t]he crime of rape may be accomplished through the use of actual physical force or violence," but explained that this need not always be the case. She went on to say, "for example, if [a complainant's] condition as a result of being intoxicated or unconscious or asleep is such that she is wholly insensible so as to be incapable of consenting, then the Commonwealth need only prove that amount of force which was necessary to accomplish the natural or unnatural sexual intercourse." In her separate explanation of the crime's element of lack of complainant consent, however, the judge told the jury only that they might consider evidence of the complainant's "sobriety" in assessing her capacity to consent. The judge did not repeat that the complainant's level of in sobriety or intoxication must be such that she was "wholly insensible" in order for the jury to find her incapable of consenting.³

During their deliberations, the jury submitted a question to the judge asking, "Could you please clarify the definition of `wholly' insensible?" The judge worked with the prosecutor and defense counsel in an attempt to frame a response, but she ultimately determined that the instruction was sufficiently clear as given. She accordingly instructed the jury, over the defendant's objection, to "apply...