Com. v. Egerton

• Decision Date: 13 January 1986
• Citation: 487 N.E.2d 481,396 Mass. 499
• Parties: COMMONWEALTH v. Leonard E. EGERTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 481

487 N.E.2d 481

396 Mass. 499

COMMONWEALTH v. Leonard E. EGERTON.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Oct. 7, 1985.

Decided Jan. 13, 1986.

John F. Palmer, Boston, for defendant.

Judy G. Zeprun, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

Leonard Egerton (the defendant) was indicted for forcible rape of a child under sixteen years of age. G.L. c. 265, § 22A (1984 ed.). The case was tried before a jury in Suffolk County. The jury found the defendant guilty of assault with intent to rape the child. G.L. c. 265, § 24B (1984 ed.). He was sentenced to a term of nine to twelve years in the Massachusetts Correctional Institution at Walpole (now Cedar Junction). On appeal, the defendant claimed error based on the trial judge's failure to charge the jury on the lesser included offense of indecent assault and battery on a child under the age of fourteen. G.L. c. 265, § 13B (1984 ed.). The Appeals Court agreed, and, in an unpublished memorandum and order, reversed the judgment of conviction. 19 Mass.App. 1102, 471 N.E.2d 1372 (1984). The Appeals Court did not consider the defendant's second argument, that the prosecutor improperly cross-examined the defendant's alibi witnesses thereby denying him a fair trial. We granted the Commonwealth's application for further appellate review. Mass.R.A.P. 27.1, as amended, 367 Mass. 922 (1975). On consideration of both issues, we affirm the conviction.

We summarize the evidence submitted to the jury. The victim, a seven year old girl, lived with her mother. On Friday, October 1, 1982, she went to stay at her father's apartment for the weekend. She returned to her mother's home on Sunday. The following day, while laundering the clothes which the victim had taken with her to her father's house over the weekend, the mother noticed that a pair of her daughter's underwear was stained like those of an "adult woman." On Monday evening the mother observed her daughter repeatedly scratching her groin area and inquired as to the reason. The victim began to cry and told her mother that a friend of her brother had hurt her with his "private." She could not remember the name of her assailant but described to her mother a person resembling the defendant, whom she had met outside her father's apartment building that past Friday. ¹

The mother took her daughter to Children's Hospital Medical Center where she was examined by Dr. Victor Fox and then interviewed by Detective Robert Lawrence of the Boston police department. The victim told the detective that "Lenny" had hurt her with his "private." Subsequently, she selected the defendant's photograph from an array of twelve pictures, and later identified him at his arraignment in Roxbury District Court, as well as at trial.

The victim testified that at some point on the morning of Saturday, October 2, 1984, she ascended the stairs of her father's apartment house to see if her brother Ricardo was on the roof. Not finding Ricardo there, the victim had started back down the stairs when she was confronted by the defendant. She testified that the defendant approached her while holding his "private," pushed her down, and told her to "[k]iss this." When she refused, the defendant pulled down her pants and underwear forced her legs apart despite her struggle to keep them clenched together, and "put his private in [hers]." Using anatomically accurate dolls, the victim indicated that the defendant had penetrated her. ² She stated that she did not tell anyone what had happened for several days because she was afraid. When she did inform her mother and Detective Lawrence about the incident, in separate conversations, her account, as recalled at trial by both the victim's mother and Detective Lawrence, was substantially identical to her own testimony.

Doctor Fox testified that when examining the victim he found no bruising or lacerations of the girl's genitalia. Her hymen was intact, and Dr. Fox perceived no evidence of trauma. He did note a "slight and diffuse" redness over the outer lips of her vagina but conceded on cross-examination that this could have been caused by a number of things, including persistent scratching. Dr. Fox also testified that he performed a test which indicated the presence in the victim's vagina of acid phosphatase, an enzyme characteristically found in seminal fluid. In addition, he conducted a Wood's lamp test, which involved shining an ultraviolet light on the victim's genitalia for evidence of fluorescing material. This procedure revealed a mucous substance that, in Dr. Fox's estimation, could have been seminal fluid. Based on his various findings, Dr. Fox could not say with medical certainty whether or not the victim had been sexually penetrated, but opined that his findings were consistent with penetration.

The defendant called two witnesses to refute Dr. Fox's medical testimony. David L. Brody of the Boston police department crime laboratory testified that he performed an acid phosphatase test on a gauze pad which Dr. Fox had used to swab the victim's vagina when examining her. Brody's test indicated trace levels of acid phosphatase, which in his view were not conclusive as to the presence of semen. He stated that other materials, including vaginal secretions, contain acid phosphatase and could account for a positive acid phosphatase test. He testified further that he examined two vaginal smears prepared by Dr. Fox, but found no indication of the presence of sperm.

John Cope Abbott, a forensic serologist, corroborated Brody's assertion that acid phosphatase is contained in vaginal secretions, as well as seminal fluid. He testified also that it would be unlikely to detect semen in the vagina more than forty-eight hours after its introduction there. In the instant case, the victim was not examined until three days after the alleged rape took place. In Abbott's opinion, therefore, the trace of acid phosphatase detected by Brody probably came from the victim's own vaginal secretions. With regard to the Wood's lamp test conducted by Dr. Fox, Abbott testified that a number of substances other than seminal fluid may cause fluorescence, among them vaginal lubricants and various soaps and detergents.

The defendant testified at trial and denied his guilt, claiming that he was not present at the relevant times. His defense was alibi, and he presented several witnesses (as later described) to establish and corroborate his alibi defense.

1. Failure to charge on indecent assault and battery. At the conclusion of the evidence, the judge instructed the jury on the elements of forcible rape under G.L. c. 265, § 22A, and as to the elements of the lesser included offense of assault with the intent to rape a child under G.L. c. 265, § 24B. The defendant, at the conclusion of the judge's charge, orally requested a charge as to the lesser included offense of indecent assault and battery of a child under the age of fourteen. G.L. c. 265, § 13B. The judge declined. The defendant claims this to have been error. We disagree.

"A judge is required to charge the jury concerning lesser included offenses if the evidence provides a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense." Commonwealth v. Santo, 375 Mass. 299, 305, 376 N.E.2d 866 (1978). ³ In determining whether any view of the evidence would support a conviction on a lesser included offense, "all reasonable inferences must be resolved in favor of the defendant," Commonwealth v. Vanderpool, 367 Mass. 743, 746, 328 N.E.2d 833 (1975). "The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon.... That is a question within the exclusive province of the jury." Commonwealth v. Campbell, 352 Mass. 387, 398, 226 N.E.2d 211 (1967), quoting People v. Carmen, 36 Cal.2d 768, 773, 228 P.2d 281 (1951).

It is equally true, however, that a judge need not charge the jury on a hypothesis unsupported by the evidence. Commonwealth v. Lee, 383 Mass. 507, 513-514, 419 N.E.2d 1378 (1981). Commonwealth v. Costa, 360 Mass. 177, 184, 274 N.E.2d 802 (1971). Even when evidence is introduced that would justify conviction for a lesser included offense, the defendant is not entitled to an instruction thereupon unless the proof on the "elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense." United States v. Brischetto, 538 F.2d 208, 209 (8th Cir.1976), quoting United States v. Thompson, 492 F.2d 359, 362 (8th Cir.1974).

The crime of indecent assault and battery is related to the crime of forcible rape, but the prosecutor is not required to prove a specific intent to rape. See Commonwealth v. Hobbs, 385 Mass. 863, 872, 434 N.E.2d 633 (1982). "The gravamen is the assault and battery which requires only the general criminal intent to do that which law prohibits." J.R. Nolan, Criminal Law § 234 (1976). Thus, the specific intent to rape is the critical element on which to focus in examining the evidence presented.

On the basis of the victim's testimony that the defendant approached her with his penis exposed and pushed her onto her back, there was evidence that would warrant a conviction for indecent assault and battery. But the victim testified further that the defendant attempted to, and did successfully, rape her. The defendant's defense was primarily one of alibi, which, if believed, would lead to acquittal. Without more, the alibi evidence introduced would not provide a basis for requiring a lesser included offense instruction on indecent assault and battery because such evidence in no way negated the victim's testimony on the defendant's specific intent to rape. See Ettinger, In Search of a Reasoned Approach to the Lesser...