Com. v. Blow

• Decision Date: 07 June 1976
• Citation: 370 Mass. 401,348 N.E.2d 794
• Parties: COMMONWEALTH v. Carton J. BLOW.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 794

348 N.E.2d 794

370 Mass. 401

COMMONWEALTH

v. Carton J. BLOW.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Dec. 2, 1975.

Decided June 7, 1976.

Robert A. Stolzberg, Roxbury, for defendant.

John M. O'Connor, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and QUIRICO, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

Tried upon indictments for rape (G.L. c. 265, § 22) and unarmed robbery (G.L. c. 265, § 19), the defendant Carlton Blow was acquitted by a Worcester County jury of rape, and convicted of the robbery. His appeal under G.L. c. 278, §§ 33A--33G, is here on direct review pursuant to G.L. c. 211A, § 10(A).

The jury may be taken to have adopted a view of the facts roughly as follows. Around midnight of October 8, 1972, the complainant, who had been drinking very heavily, went to Mr. Ed's Cafe to buy two six-packs of beer and to have some beer at the bar. The defendant and his companion, Vincent Wolochowicz, ¹ were seated at a booth and had a clear view of her pocketbook as she paid. After roaming about the bar talking with several of the customers, the complainant settled into the booth with the pair. They were all 'laughing and kidding.' At one point in the evening the complainant tried to entice Wolochowicz into the ladies' room. At closing, the three left the bar together in a cab and during the ride there was a dispute as to whether Wolochowicz's recollection of a prior sexual encounter with the complainant was correct. (The complainant's own testimony was that she arrived at Mr. Ed's shortly before closing time to buy beer and that as she departed the two men rushed up behind her and jumped into the cab with her.)

On the defendant's order the cab stopped at a used car lot. Despite the complainant's protestations that she wanted to go home, the men pulled her out of the cab, mentioning something about getting a bottle and going to the 'El Morocco.' As the cab left, the two guided the complainant to the back of the lot. Wolochowicz said, 'Give me your pocket.' He twisted the complainant's arm and wrenched her purse from her, tearing the strap. The defendant observed Wolochowicz take the pocketbook. He pushed the complainant into the back seat of a junk car and engaged in intercourse with her. In the meantime Wolochowicz went through the pocketbook removing $280. He yelled to the defendant, 'Hey, we've got two hundred.' Wolochowicz threatened to kill the complainant if she turned them in. He gave her $3 and a dime, saying, 'Call a cab.' Then Wolochowicz divided the money he had taken from the pocketbook, giving the defendant $100. The men fled from the scene together.

The complainant went to a nearby phone booth and telephoned the cab company, reaching the dispatcher who, as it happened, had shared the front seat in the cab with the driver on the trip to the car lot. She said she had had 'problems' with the two men, but she did not mention the specifics. A cab arrived and took the complainant to the cab office where she told the dispatcher that she had been raped and robbed. She was taken to the police station, where she made a statement, and was then driven to a hospital for examination. That day she selected pictures of Wolochowicz and the defendant from a set, and later she pointed out the defendant at a lineup.

The defendant challenges his conviction for the unarmed robbery claiming that there was error in admitting the details of the complainant's statement to the dispatcher; in the instructions to the jury on intent and joint venture; and in denying the defendant's motions for a directed verdict at the close of the prosecution's case and before submitting the case to the jury. There was no error. We affirm the judgment.

1. The dispatcher, called by the Commonwealth after the complainant herself had testified, described the complainant's statements in the office of the cab company shortly after the events in the used car lot. His direct testimony was that '(s)he had said that she had been raped and robbed of three hundred dollars' and that she had said the defendant and Wolochowicz 'had taken her out into a car in this parking lot and taken her pocketbook away from her, (and) took the money out. And she had said that the small guy (the defendant) had taken her clothes off and raped her.' Defense counsel objected to the questions eliciting this testimony but the judge admitted it under the 'fresh complaint' doctrine. See Commonwealth v. Bailey, --- Mass. ---, --- ^a, 348 N.E.2d 746 (1976) decided this day. The defense then moved to strike the testimony so far as it related to the robbery, but the judge ruled that the entire statement was admissible.

The defendant does not now attack head-on our rule which admits the details of the fresh complaint as part of the prosecution's case in chief to corroborate the complainant's court testimony (see Commonwealth v. Bailey, supra at --- ^b, 348 N.E.2d at 746); the argument is rather that our rule should not hold, or should be qualified, in the particular case where a defendant is charged with a second crime in addition to rape and the complaint extends to both crimes. ² It is pointed out that such a complaint would have been inadmissible for the purpose in a trial charging the defendant with the second crime alone, and admission of the testimony here may be seen as especially improper because the defendant, as it turned out, was acquitted of the charge of rape.

As in Commonwealth v. Bailey, we think it clear that if there was any error in admitting the testimony, it was technical, not material error, and hardly ground for reversal. The dispatcher's statements 'were merely a summary of her (the complaint's) oral testimony at trial. They were plainly cumulative in effect, and therefore they were not prejudicial.' Commonwealth v. Izzo, 359 Mass. 39, 43, 267 N.E.2d 631, 634 (1971); see Commonwealth v. Howard, 355 Mass. 526, 530, 246 N.E.2d 419 (1969). Nor were the statements so graphic or colorful as to be likely to have important effect on the jury. There was, moreover, a proper instruction that the statements could be considered only for corroborative purposes.

We note, further, that the jury reached a conclusion contrary to that suggested by the testimony of fresh complaint. Ordinarily such testimony would seem to aid the prosecution most in cases, like the one before us, in which the defendant hopes to establish consent (see Commonwealth v Bailey, supra at --- ^c, 348 N.E.2d at 746); here the defendant was acquitted of the rape charge. On cross-examination, indeed, the defendant's attorney was able to elicit from the dispatcher that the complainant said Wolochowicz had robbed her and the defendant had raped her. Thus the testimony as a whole might have suggested, favorably to the defendant, that he was acting independently of Wolochowicz and was not a participant in the robbery.

Even if the testimony objected to could have had some impact, we would not be disposed to hold it, or any part of it, inadmissible and thus to abandon or modify our basic rule in the particular situation. ³ The defendant's proposed solution--that the narrative of the complaint be limited to details concerning the rape--has little to commend it. Often it would be impossible as a practical matter to segregate the facts corroborating only the claim of rape. And if it would be natural for the complainant to mention an associated crime in her statement of the sexual assault, the jury might draw an erroneous inference from the confinement of the testimony of fresh complaint to the alleged rape: admission of a partial statement might tend to discredit the complainant's testimony at trial as a recent fabrication rather than to corroborate it.

Among the alternatives that suggest themselves are limiting the testimony to the fact that a complaint of sexual assault was made, excluding the details, or having the prosecution forego the testimony regarding complaint where multiple crimes are being tried. The first alternative would suffer from the faults of restricted corroboration already mentioned, and both alternatives would yield the anomaly that the evidence that could be called in support of a prosecution for rape would be diminished when the circumstances were allegedly aggravated. Still another alternative, severing the trial for rape from that for the other crimes, could relieve these problems but with other unacceptable consequences.

We think the advantage lies with maintaining a uniform rule that applies as well in instances of multiple charges (which must represent a sizeable fraction of all cases in which rape is charged). We believe there is no substantial likelihood of prejudice arising from such references as there may be to related crimes. Usually that testimony will be merely repetitive of the complainant's trial testimony (see Commonwealth v. Izzo, 359 Mass. 39, 43, 267 N.E.2d 631 (1971)); any discrepancy found may work in the defendant's favor. See Commonwealth v. Bailey, supra at --- ^d, 348 N.E.2d at 746; State v. Kinney, 44 Conn. 153, 156 (1876). To ensure more complete protection of the defendant, however, we think we should in the future (see note 2 supra) follow a practice adopted in Connecticut, a jurisdiction which, like the Commonwealth, admits the entire fresh complaint as part of the prosecution's case-in-chief: the defendant, if he desires, will be entitled to an instruction that the complaint shall be considered only in relation to the rape charge (and only for purposes of corroboration). See State v. Purvis, 157 Conn. 198, 207--208, 251 A.2d 178 (1968); State v. Sebastian, 81 Conn. 1, 4, 69 A. 1054 (1908). As in the Bailey case, we add that if an extraordinary situation should arise in which the jury might be inflamed by testimony rehearing the complaint, the trial judge would be free to take cautionary measures.

2. The defendant argues that the jury instructions were defective in failing to indicate that...