Com. v. Dean

• Decision Date: 31 January 1986
• Citation: 486 N.E.2d 61,21 Mass.App.Ct. 175
• Parties: COMMONWEALTH v. Clarence DEAN.
• Court: Appeals Court of Massachusetts

Page 61

486 N.E.2d 61

21 Mass.App.Ct. 175

COMMONWEALTH v. Clarence DEAN.

Appeals Court of Massachusetts,

Worcester.

Argued Oct. 11, 1985.

Decided Dec. 4, 1985.

Further Appellate Review Denied Jan. 31, 1986.

Carlo A. Obligato, Committee for Public Counsel Services, Boston, for defendant.

Katherine E. McMahon, Asst. Dist. Atty., for Commonwealth.

Before DREBEN, KAPLAN and WARNER, JJ.

KAPLAN, Justice.

The defendant, Clarence Dean, appeals from judgments entered upon verdicts of a Worcester County jury finding him guilty of the crimes of kidnapping (G.L. c. 265, § 26) and assault and battery with a dangerous weapon (G.L. c. 265, § 15A). He was sentenced to concurrent terms of three and one half to six years at M.C.I., Walpole, sentences suspended, probation for five years. ¹ The grounds of appeal are that certain happenings at trial compromised its fairness, and that there was a "variance." We affirm.

1. Sketch of the facts. Sometime in September, 1981, Annette Dean, wife of the defendant, left him and went to a place on Cape Cod, taking their two children with her. In late December she returned with the children--one aged eight months, the other two years--to her mother's house in Fitchburg. The defendant resided in Leominster. There were proceedings regarding custody of the children of which the result apparently was that "legal" custody vested in the Department of Social Services, and "physical" custody in Annette, with the defendant entitled to visitation.

We summarize Annette's testimony to events on December 26 and thereafter. ² That morning the defendant phoned her and asked for a chance to speak with her. He drove her and the children to his apartment, where they spent some hours. About 10:30 P.M. he commenced driving them back to Fitchburg but, showing much agitation, he passed by the Fitchburg road exits, took route 2 in a westerly direction, then turned left on route 31, and traveled south toward the town of Princeton. Around this time, and intermittently during the long trip ahead, he spoke of having nothing to live for and of wanting to commit suicide and to destroy the whole family. Stopping the car in a wooded, dark spot, he began to choke Annette--he said he would make her pay for his misery. He drove further south on 31, parked, and again choked her. She managed to draw herself up on the front seat and sounded the horn with her foot. She screamed. He seized her and bit her nose. She retreated to the back seat where the children were placed and opened the door with some purpose of getting out, whereupon the defendant ran the car wildly, swerving left and right. He drew a knife from the front compartment and said he would use it.

He ordered her to the front seat, disposed her across his knees, and, driving down side roads with one hand on the wheel, he put the knife to her neck, to the back of her ear, and at her ribs. He returned to route 2 and about 12:30 A.M. (December 27) stopped at a Wayside Furniture lot. The children were screaming in the rear. He threatened to cut off her leg and in fact struck her with the knife in her left thigh, drawing blood. At this point she needed to urinate and had to do so on the floor of the car.

The defendant said he would take her to the hospital, and took on gas near the Leominster hospital--it was now about 2:00 A.M.--but then, after a stop at a K-Mart parking lot, he went west on route 2, to the environs of the town of Orange. Halting at a rest area, he handcuffed Annette to himself, ³ and tried to sleep.

About 6:30 A.M., he removed the handcuff and the trek resumed west on route 2, onto route 91, and then south on 91 almost to the Connecticut border. He pulled to the side of the road, wanting sleep. Some time past 8:30 A.M. a Massachusetts State trooper drew up and spoke to the defendant (seated in the driver's seat) about the cardboard license the car was carrying in lieu of a metal plate. The defendant reassured the trooper. Annette remained silent. A little further south on 91, in Enfield, Connecticut, the party ate food at a drive-in. Headed back to Massachusetts, north on 91, the defendant stopped for some rest. Annette was obliged to urinate in the car. By this time the children were wet, cold, and filthy, and needed changing.

Now the car traversed the whole length of route 91 in Massachusetts and reached Vermont. Here the defendant turned around, went south on 91, and reentered route 2 in the vicinity of the town of Gill. The defendant handcuffed Annette to the wheel while he entered a small variety store and bought pampers for the children and snack foods. The car approached Fitchburg around 10:00 P.M. after trying back roads in or about the towns of Ware, Barre, and Hardwick. As the defendant feared going to his apartment because the police might be there, he told Annette to phone the Leominster police and tell them she was all right. She made the call with the defendant nearby. He wanted the message to reach a Lieutenant LaPlume and Annette did talk to the officer from the Double Dragon restaurant, where the car had finally arrived.

They returned now to the place of beginning, the defendant's apartment in Leominster. On the way, the car ran out of gas. The defendant was assisted by a passing vehicle to go to a gas station. Returning, he met a State trooper who had come on the scene and spoke briefly to him.

At the apartment Annette changed her underwear. She placed in the medicine chest the defendant's knife which he had given her sometime that afternoon. All went back to the car and the defendant drove to the Henry Weywood Memorial Hospital in Gardner, where Annette was treated in the emergency room for the thigh injury. At 4:00 A.M. (December 28) she and the children arrived back at the house in Fitchburg.

The following morning she called an elder of her church and later met him and another and followed their advice to report the matter to the Fitchburg police.

Annette's account was amply corroborated. Independent evidence confirmed that on the morning of December 28, her nose was bruised, there were cuts on her neck and behind her ear, and a wound on her left thigh (verified by her bloodied jeans, in addition to the hospital record). The condition of the interior of the car was testimony to the character of the journey. The knife and handcuffs turned up as expected.

The jury could find unbelievable any suggestion that Annette's story in its salient features had been invented by her or exaggerated to the point of falsification (and the wounds possibly self-inflicted) in order to bolster her ultimate claim to the children. The defense could point to occasions when Annette might have tried to escape or summon help but failed to do so. Such omissions would not in themselves palliate the abduction or assault; and a jury could find explanation in Annette's concern for the safety of the children, her fear of what the defendant might do if she disregarded his warning (repeatedly given) that she should not involve third persons, and the turbulence of her emotions as she was being abused by the man to whom she had been married for three years. A number of seeming oddities in her behavior are similarly explicable, ⁴ and, upon a reading of the entire record, leave the case against the defendant notably strong.

2. Problems at trial. The defense had moved in limine to bar reference at trial to any allegations of forcible sexual acts on the part of the defendant. ⁵ This was acquiesced in, and the prosecutor spoke to Annette and other prospective Commonwealth witnesses accordingly. However, in describing the first choking episode, Annette said the defendant "finally let go, and he said to me, 'But before I kill you, you're going to get down on it.' " She said further, "He said he wanted me to do something, which I refused to do." At this point defendant's counsel asked for a bench conference. The judge wanted to know whether this passage of the testimony could be got by quickly and to this end he heard further testimony by the witness under questioning by the prosecutor in the absence of the jury. Satisfied, the judge denied a motion for a mistrial which the defense then made. As the defense preferred not to highlight the witness's remarks, the judge did not order them struck or make any other comment. The direct examination resumed before the jury. Although the witness had been again warned during the bench conference, she made a slanting reference to the subject later in her testimony when she interjected, "Something else happened there that I can't testify about...." The judge allowed a motion to strike and instructed the witness to answer the precise question and not to volunteer.

The witness's statements, reflecting on the defendant, were vague, fleeting in relation to a sizeable record, and given no special prominence. In situations of this sort, much must be left to the discretion of the trial judge, see Commonwealth v. A Juvenile, 365 Mass. 421, 439, 313 N.E.2d 120 (1974); Commonwealth v. Hoffer, 375 Mass. 369, 372-373, 377 N.E.2d 685 (1978); Commonwealth v. Cunneen, 389 Mass. 216, 223, 449 N.E.2d 658 (1983); Commonwealth v. Denson, 16 Mass.App. 678, 681, 454 N.E.2d 1283 (1983), and we are not prepared to overrule his evident view that the essential...