Com. v. Caracciola

• Decision Date: 03 April 1991
• Citation: 409 Mass. 648,569 N.E.2d 774
• Parties: COMMONWEALTH v. Joseph CARACCIOLA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 774

569 N.E.2d 774

409 Mass. 648

COMMONWEALTH v. Joseph CARACCIOLA.

Supreme Judicial Court of Massachusetts Hampden.

Argued Oct. 1, 1990.

Decided April 3, 1991.

Andrew Silverman, Committee for Public Counsel Services, (Richard Rubin, Committee For Public Counsel Service, with him), for defendant.

Christina Calabrese, Asst. Dist. Atty., for Com.

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

ABRAMS, Justice.

The defendant was indicted on a charge of rape under G.L. c. 265, § 22. Pursuant to Commonwealth v. McCarthy, 385 Mass. 160, 430 N.E.2d 1195 (1982), the defendant moved to dismiss the indictment, arguing that there was no evidence presented to the grand jury showing that he used force or the threat of force against the victim. The defendant claims that, at most, the evidence suggests fraudulent inducement to consent to sexual intercourse, but that Commonwealth v. Goldenberg, 338 Mass. 377, 155 N.E.2d 187 (1959), precludes the use of fraud as force as an element of rape.

The judge summarized the grand jury testimony as follows. The defendant, who is not a police officer, pulled his vehicle alongside the victim on a downtown Springfield street. He told the victim to get off the street. She noticed that he was wearing a gun. The victim left and went to the bus station to make a telephone call. After watching her for a while, the defendant approached the victim again and said, "I thought I told you to get lost." The defendant told the victim to get in the automobile, and she obeyed. The defendant drove in what the victim believed to be the direction of the police station. The victim began to cry and the defendant told her that if she did not stop crying he would "lock [her] up for more things than [he] was planning on." ¹ The defendant started to drive her home but stopped in a school parking lot instead. He began to touch her and rub her legs. The victim told him she was scared and that police officers came by that area often. He said not to be afraid, because he was a police officer. ² He made her get on top of him and have sexual intercourse. She said that she feared that if she did not do what he wanted, he would arrest her. ³

The judge determined that there was no evidence presented to the grand jury that the defendant used force on the victim. He concluded that the motion to dismiss should be allowed based on our decision in Goldenberg, supra. The judge did not do so. The judge reported the question ⁴ of the sufficiency of the evidence before the grand jury to the Appeals Court without acting on the motion to dismiss.

"The better practice is for a judge to decide the issues raised by a defendant's motion to dismiss. In the event of conviction appellate review is available to a defendant.... If the motion to dismiss is allowed, the Commonwealth has the right to appeal. See Mass.R.Crim.P. 15(a), 378 Mass. 882 (1979)." Commonwealth v. Fitta, 391 Mass. 394, 398, 461 N.E.2d 820 (1984). We allowed the defendant's application for direct appellate review. We conclude that the motion to dismiss should be denied.

Although it is "the well established principle that the adequacy of the evidence presented to the grand jury cannot be tested by a motion to dismiss," Commonwealth v. Robinson, 373 Mass. 591, 592, 368 N.E.2d 1210 (1977), in the McCarthy case we carved out a very limited departure from this principle where no evidence of criminality was presented to the grand jury. McCarthy, supra, 385 Mass. at 163, 430 N.E.2d 1195. We ruled that the prosecutor must present sufficient evidence to establish the identity of the accused, and probable cause to arrest him or her. See id. However, the "requirement of sufficient evidence to establish [these two facts] is considerably less exacting than a requirement of sufficient evidence to warrant a guilty finding." Commonwealth v. O'Dell, 392 Mass. 445, 451, 466 N.E.2d 828 (1984). With these principles in mind, we turn to the judge's determination that the motion to dismiss pursuant to McCarthy should be allowed.

General Laws c. 265, § 22(b), provides, "Whoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury, shall be punished...." The statute thus establishes two proscribed means of compelling someone to submit: (1) by force and against his will, or (2) by threat of bodily injury. ⁵ The evidence before the grand jury was sufficient on the issue of force.

We do not agree with the judge's assessment that no evidence was presented to satisfy the statutory words "by force and against [her] will." The words of the statute are not limited solely to physical force. ⁶ We previously have recognized that a defendant can be guilty of rape without having used or threatened physical force if the consent of the complainant was obtained from the victim's fear arising from threats or conduct of a third party. See Commonwealth v. Therrien, 383 Mass. 529, 538-539, 420 N.E.2d 897 (1981). We also have held that a rape occurs where intercourse is had with only "such force as was necessary to accomplish the purpose" when the victim was "wholly insensible so as to be incapable of consenting." Commonwealth v. Burke, 105 Mass. 376, 380-381 (1870). Likewise have we instructed that the jury is entitled to "consider the entire sequence of events and acts of [the] defendants as it affected the victim's ability to resist." Commonwealth v. Sherry, 386 Mass. 682, 688, 437 N.E.2d 224 (1982). We do not require victims to use physical force to resist an attack. See id. These cases are cited to illustrate the point that an examination of the circumstances or fear in which the victim is placed, the impact of those circumstances or fear on the victim's power to resist and the defendant's conduct all are relevant to the determination of whether conduct complained of by the victim was accomplished by force and against the victim's will. No case has held that rape is limited solely to the use of physical force. Indeed, the words of the statute are to the contrary. See infra.

Because robbery and rape are both crimes of violence, there is no reason to conclude the Legislature assigned a different, more limited meaning to the word "force" in the rape statute from its meaning in the robbery statute. In discussing the word force as used in robbery, the court said that "actual force is applied to the body, constructive force is by threatening words or gestures and operates on the mind." Commonwealth v. Novicki, 324 Mass. 461, 467, 87 N.E.2d 1 (1949), quoting Commonwealth v. Snelling, 4 Binn. 379, 383 (Pa.1812) (robbery). See also Commonwealth v. Richards, 363 Mass. 299, 304, 293 N.E.2d 854 (1973) (robbery). In robbery cases, we said that "[w]hether actual or constructive force is employed, the degree of force is immaterial so long as it is sufficient to obtain the victim's property 'against his will.' " Commonwealth v. Jones, 362 Mass. 83, 87, 283 N.E.2d 840 (1972). Thus, a purse snatching that is accomplished with force "sufficient to produce awareness, although the action may be so swift as to leave the victim momentarily in a dazed condition," is considered a robbery rather than a larceny which is theft without force. Id. at 89, 283 N.E.2d 840. Moreover, a victim's statement that "I was scared to death" is sufficient to show the use of force if the jury decides that "her fear aided the defendant in effecting the taking." Id. The defendant's argument that physical force is a required element in rape cases asks us to assume that the Legislature intended to give greater protection to property than to bodily integrity. We decline to make such an unwarranted assumption.

Relying on Commonwealth v. Goldenberg, 338 Mass. 377, 155 N.E.2d 187 (1959), the defendant asserts that, because he was not a police officer, his statements are merely fraudulent, and fraud is not force. Therefore, he concludes that his motion to dismiss should be allowed. We do not agree. We think the defendant's lie about being a police officer is irrelevant. The complainant was entitled to take the defendant's threatening words and his conduct at face value. Those threats and the circumstances created by his conduct and his words are sufficient to constitute the force contemplated by the statute. His words and conduct also distinguish this case from Goldenberg. In that case, there were no threats and no conduct ⁷ which were calculated to instill fear in the complainant in order for the defendant to achieve his goal. There was no actual or constructive force in Goldenberg. As we read the statute, the force needed for rape may, depending on the circumstances, be constructive force, as well as physical force, violence, or the threat of bodily harm. Where, as here, the Commonwealth relies on constructive force, it also must prove that the sexual intercourse was against the will of the complainant.

The statute requires that the Commonwealth prove its case by demonstrating that the person charged has sexual intercourse or unnatural sexual intercourse with a person either "by force and against his will " or "by threat of bodily injury." See G.L. c. 265, § 22(b), supra at (emphasis supplied). Thus, contrary to the dissent, a strict reading of the statute does not limit the Commonwealth's proof to the use or threat of bodily injury. ⁸ Indeed, the dissent's construction reads out of the statute the requirement that the force used be against the will of the person so compelled. There would be no need for that requirement if the force used were limited solely to physical force. The dissent resolves this dilemma by asserting that "the words, by 'force and against his will,' appear to be redundant," infra. However, "[n]o portion of the statutory language may be deemed superfluous." Commonwealth v. Gove, 366 Mass. 351, 354, 320 N.E.2d 900 (1974). It is precisely this...