Com. v. Feijoo

• Decision Date: 14 February 1995
• Citation: 419 Mass. 486,646 N.E.2d 118
• Parties: COMMONWEALTH v. Humberto R. FEIJOO (and twelve companion cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 118

646 N.E.2d 118

419 Mass. 486

COMMONWEALTH v. Humberto R. FEIJOO (and twelve companion cases).

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued May 4, 1994.

Decided Feb. 14, 1995.

Bernard Grossberg, for defendant.

Robert C. Thompson, Asst. Dist. Atty., for Com.

Before LIACOS, WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

This case is here on direct appellate review. The defendant appeals from single convictions of rape, G.L. c. 265, § 22(b) (1992 ed.), and rape of a child by force, G.L. c. 265, § 22A (1992 ed.), three convictions of rape of a child (statutory rape), G.L. c. 265, § 23 (1992 ed.), a conviction of indecent assault and battery on a child under the age of fourteen, G.L. c. 265, § 13B (as appearing in 1984 ed.), ¹ six convictions of indecent assault and battery on a person fourteen years of age or older, G.L. c. 265, § 13H (1992 ed.), and a conviction of assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A(b) (1992 ed.). The thirteen convictions involved nine alleged victims, each of whom was a male between twelve and seventeen years of age when the alleged offense or offenses against him occurred. The defendant was sentenced to life imprisonment on one conviction of rape of a child (statutory rape, c. 265, § 23) under indictment no. 83346. We shall refer to that child victim as P.C. The defendant was sentenced to imprisonment for not less than thirty nor more than fifty years on a second conviction of rape of a child (statutory rape) under indictment no. 83350, the sentence to run from and after the sentence on indictment no. 83346. The alleged victim was E.S. The defendant also was sentenced to imprisonment for not less than thirty nor more than fifty years for rape of a child (hereinafter A.H.) under indictment no. 83355, the sentence to run from and after the sentence on indictment no. 83346 and concurrently with the sentence on indictment no. 83350. The sentences on the ten other convictions were substantially less and were to be served concurrently with the sentence under indictment no. 83346.

We affirm the three convictions of rape of a child, G.L. c. 265, § 23 (indictment nos. 83346, 83350 and 83355). We affirm the conviction of rape of a child (P.C.) by force (indictment no. 83348), and we reverse the conviction of rape of W.R. (indictment no. 83353). We affirm two convictions of indecent assault and battery on a person fourteen or older (victims R.H. and J.R., indictment nos. 83358 and 83382), and we affirm the conviction of assault and battery by means of a dangerous weapon upon P.C. (indictment no. 83347). We reverse the four remaining convictions of indecent assault and battery on a person fourteen or older in which the alleged victims were A.J., D.G., P.C., and A.H. (indictment nos. 83359, 83357, 83349 and 83354), and we reverse the conviction of indecent assault and battery on a child under fourteen in which the alleged victim was J.O'D. (indictment no. 83360).

The defendant argues that all thirteen convictions must be reversed because his motions (1) to suppress evidence seized by police officers from his home, (2) for relief from prejudicial joinder of the several indictments for trial and (3) for a new trial, were wrongly denied. In addition, the defendant argues that his motions for required findings of not guilty of statutory rape (G.L. c. 265, § 23) of P.C., rape of a child (P.C.) by force (G.L. c. 265, § 22A), and rape of W.R. (G.L. c. 265, § 22(b), were erroneously denied, as were his motions for required findings of not guilty of the seven charges of indecent assault and battery. The only convictions that the defendant does not challenge as unsupported by sufficient evidence as a matter of law are the statutory rape convictions with the alleged victims being A.H. (indictment no. 83355) and E.S. (indictment no. 83350), and the conviction of assault and battery on P.C. by means of a dangerous weapon (indictment no. 83347).

We shall recite facts that the jury would have been warranted in finding and that are generally helpful to an understanding of the issues on appeal. Later, in discussing the several convictions separately, we shall make such further references to the evidence, which is contained in nineteen volumes of transcript, as may be required to resolve the parties' contentions.

The offenses are alleged to have taken place between July, 1981, and July, 1986, during which period the defendant was between twenty-seven and thirty-three years of age. He weighed approximately 300 pounds. The defendant taught karate classes two or three times per week. In 1981 and 1982 the classes were taught in the defendant's home, and thereafter they were taught in a barn attached to the defendant's home. Between 1981 and 1986 the defendant was involved as an officer in the Sea Cadets, which is an organization similar to the Boy Scouts. All the alleged victims studied karate under the defendant and many of them were Sea Cadets. The defendant led them to believe that he was a Ninja and that Ninjas were the elite in karate, ranking higher than persons with black belts. The defendant told each alleged victim individually that he would be the defendant's protege. Each was told the benefits that he would enjoy as a result of being the defendant's protege. With respect to most of the alleged victims, the defendant's method of operation was to instruct them that, to succeed, they would have to identify their deepest fears or repulsions and overcome them. In one way or another, the defendant encouraged each boy to choose "being gay" as the condition to be overcome. Also, the defendant encouraged the boys to overcome that condition by engaging in sexual activity with him.

First, we consider the conviction of indecent assault and battery on a child under fourteen. As we have noted, supra at n. 1, the defendant's alleged criminal conduct occurred before the effective date of St.1986, c. 187, which added to G.L. c. 265, § 13B, the provision that a child under fourteen shall be deemed incapable of consenting to the conduct with which the defendant is charged. Therefore, since "lack of consent is an element of the crime of indecent assault and battery, and the Commonwealth has the burdens of production and persuasion" as to that matter, Commonwealth v. Burke, 390 Mass. 480, 482, 457 N.E.2d 622 (1983), the Commonwealth had the burden to prove that J.O'D. did not consent to the conduct with which the defendant was charged in indictment no. 83360. The Commonwealth produced evidence that the defendant had obtained J.O'D.'s submission to the defendant's sexual advances by false representations or promises of social, economic or similar benefits. Such evidence is to be distinguished from evidence of coercion by intimidation, see Commonwealth v. Caracciola, 409 Mass. 648, 653-654, 569 N.E.2d 774 (1991), and is insufficient to warrant a finding that J.O'D.'s submission was nonconsensual. Also, although there was evidence in this case that the defendant was physically imposing and trained and experienced in violence, there is no evidence that J.O'D. submitted to the conduct with which the defendant was charged because of fear of physical harm if he refused. For all that appears in the evidence, J.O'D. submitted solely in return for promised benefits, and that does not constitute indecent assault and battery.

Of course, "[i]n order to give consent a person must ... have the capacity to do so. Thus, the Commonwealth can meet its burden of production, on the issue of consent, by introducing evidence of the alleged victim's lack of capacity to consent." Burke, supra 390 Mass. at 484, 457 N.E.2d 622. Here, however, although the Commonwealth introduced evidence that the alleged victim, J.O'D., was twelve years old when the conduct complained of occurred, it introduced no other evidence of lack of capacity to consent. We conclude that the jury would not have been warranted by that evidence alone in finding that J.O'D. lacked capacity to consent and that, as a result, he did not consent. Thus, the Commonwealth failed to produce evidence of J.O'D.'s lack of consent, and the conviction under indictment no. 83360 must be reversed.

For the same reasons, we reverse the convictions of indecent assault and battery on a person fourteen or older, involving A.J., D.G., P.C., and A.H., indictments numbered 83359, 83357, 83349, and 83354. We need not discuss the evidence especially bearing on those indictments except to point out that, although there was evidence that at the time of the alleged offenses the victims ranged from fourteen to seventeen years of age, there was no other evidence that they lacked capacity to consent or that, assuming capacity, they nevertheless did not consent to the defendant's conduct. As we have said in connection with indictment no. 83360, the jury would not have been warranted by the evidence of knowing submission in response to false promises of benefit, nor by evidence of the boys' ages, standing alone, in finding that they did not consent to the defendant's conduct.

We reverse one other conviction; the conviction of rape of W.R., indictment no. 83353. There was evidence of the following facts. W.R. was seventeen years old and a high school senior when he first attended the defendant's karate classes. He stayed at the defendant's home. The defendant told W.R. about several instances in which the defendant had resorted to violence and threats of violence. The defendant told W.R. that he wanted W.R. to be his protege and take over his thirteen karate schools and eight million dollars worth of assets. The defendant told W.R. that, in order to be his protege, W.R. would have to "form a bond" with the defendant. Then, the defendant woke W.R. up one night and told W.R. that the defendant would be waiting for W.R. in the defendant's bedroom; that "it's time." W.R. went into the bedroom and he and the defendant engaged in oral...