Com. v. Helfant

• Citation: 398 Mass. 214,496 N.E.2d 433
• Parties: COMMONWEALTH v. Murray HELFANT.
• Decision Date: 13 August 1986
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 433

496 N.E.2d 433

398 Mass. 214

COMMONWEALTH v. Murray HELFANT.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued April 7, 1986.

Decided Aug. 13, 1986.

Joseph J. Balliro, Boston, for defendant.

Fern L. Nesson, Asst. Dist. Atty., for the Com.

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

ABRAMS, Justice.

After trial by jury, the defendant, Murray Helfant, was convicted of rape and of drugging a person for unlawful sexual intercourse. ¹ The defendant appealed his convictions, and we transferred the case to this court. As grounds for his appeal, the defendant claims that the trial judge erred in (1) denying the defendant's motions for required findings of not guilty; (2) prohibiting defense counsel from rehabilitating the defendant on a critical portion of his testimony; (3) allowing testimony of the defendant's prior misconduct; (4) denying the defendant's motions to sever the indictments; and (5) admitting evidence of fresh complaint. The defendant also argues that G.L. c. 272, § 3, is unconstitutionally vague. We affirm.

1a. Required findings of not guilty. At the close of the Commonwealth's case, and again at the close of the evidence, the defendant moved unsuccessfully for required findings of not guilty. The standard of review we apply to the denial of a defendant's motion for a required finding of not guilty is stated in Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979): " '[The] question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' [emphasis in original]. Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2788-2789, 61 L.Ed.2d 560 (1979) .... Thus, to sustain the denial of a directed verdict, it is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense; it must find that there was enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt." See Commonwealth v. Barry, 397 Mass. 718, 719-720, 493 N.E.2d 853 (1986); Commonwealth v. Anderson, 396 Mass. 306, 311-312, 486 N.E.2d 19 (1985). We consider the state of the evidence both at the close of the Commonwealth's case and at the close of the evidence. ²

We summarize the evidence as it may have appeared to the jury. The defendant, a fifty-one year old neurosurgeon, practiced medicine at the Framingham Union Hospital, where the complainant worked as a radiologic technologist. The defendant and the complainant dated from September, 1980, to February, 1981. On August 15, 1983, the complainant injured her back. On September 6, 1983, she spoke with the defendant by telephone and made an appointment for September 9. On September 7, the defendant telephoned the complainant and suggested that he examine her at her apartment instead. On September 8, he arrived at her apartment at 1 P.M., and examined the complainant on her bed. He told her that she had a muscle spasm and recommended an injection of Valium to relax her muscles. He then administered an injection of five to ten milligrams of Valium.

The complainant testified that immediately after the injection she became virtually unconscious, did not feel the needle being removed, and felt "[v]ery groggy. Very out of it. Very heavy.... Like I couldn't move my arm or my legs." Sometime later, a ringing telephone awakened her. The defendant told her not to answer the telephone, but, after it had rung several times, she answered. The complainant recalled speaking with her friend, Lisa Block, but could not remember the conversation. She then noticed that the defendant was lying naked beside her, that her clothes had been removed, and that the defendant was "handling" her crotch. The complainant "blacked out again" and later reawoke to find the defendant on top of her, having intercourse with her. She did not remember saying anything to the defendant at this time. Her mind was "in a fog ... like it wasn't real .... Like I was in like a Twilight Zone." She lost consciousness and reawoke to find the defendant having intercourse with her again. She asked him "why he was doing it, because wouldn't it hurt my back?" He replied that "the medicine would take care of it." Again she fell asleep and later reawoke; she saw the defendant dressing and heard water running in the bathroom. At the defendant's request, she got out of bed to let him out of the apartment. Her legs were "[l]ike rubber" and she felt like she had "about ten drinks." The defendant departed at about 2:45 P.M. and the complainant fell back asleep.

The complainant's mother and two of her friends testified that they spoke with the complainant by telephone between 3 and 3:30 P.M. They, along with Lisa Block (who had called earlier), each said that the complainant's speech was slow, slurred, and groggy. She made no mention of rape. The complainant remembered receiving the telephone calls, but had no recollection of what was said. Later in the afternoon, when another friend telephoned, the complainant began to realize what had happened. The complainant reported her allegation of rape to a series of people throughout the rest of the day and the next morning.

Two physicians testified on the proper dosage of intravenous Valium and to the probable effects of injecting it into a twenty-six year old woman. Doctor Jonathan Moss told the jurors that intravenous Valium was used almost exclusively to sedate people prior to operations because it is "an amnesia drug ... patients frequently don't remember even going to the operating room until their procedure is over." It renders them "more pliable" and lessens their protestations and resistance to uncomfortable procedures. Intravenous Valium sedates people physically, relieves their anxiety, and stops them from moving or trembling. Most patients receiving a five to ten milligram Valium injection would "become very tranquil and fall spontaneously off to sleep" and their decision-making capacity, thought processes, physical coordination and speech would be impaired for several hours. Doctor Robert Boyd stated that the accepted treatment for muscle spasms in the back is bed rest, with oral doses of pain relievers and muscle relaxants when necessary; intravenous injection of Valium would not be recommended because of the potential for "serious and devastating consequences."

The defendant claimed that he came to the complainant's apartment, examined her, and prescribed bed rest and an oral dose of Valium. In order to give her immediate relief from the spasm she was then experiencing, he injected her with five milligrams of Valium. He denied having intercourse with the complainant.

1b. We consider first the defendant's argument that he was entitled to a required finding of not guilty on the drugging charge because the complainant's testimony was not corroborated in a material particular. See G.L. c. 272, § 11. ³ Under G.L. c. 272, § 3, ⁴ the elements of the crime of drugging for sexual intercourse are (1) administration of a drug and (2) intent to stupefy or overpower the victim in order to have unlawful sexual intercourse. Besides the complainant's testimony, the Commonwealth introduced testimony from an investigating police officer that he saw an injection mark on the complainant's arm and from an expert toxicologist that, on the night of the incident, his analysis of the complainant's blood indicated a level of Valium consistent with an intravenous injection of five to ten milligrams of Valium within the past 16 hours. Further, the defendant admitted to injecting the complainant with Valium that day. This evidence amply corroborates a material particular of the plaintiff's testimony--that the defendant administered a drug to her.

The defendant argues that because he did not contest that he administered a drug to the complainant, that issue cannot be considered a "material particular." We do not agree. While we have not heretofore attempted to define "material particular" as used in G.L. c. 272, § 11, the cases suggest that the term applies to some specific testimonial fact, which, in the context of the case, is probative on an element of the crime. See Commonwealth v. Williams, 353 Mass. 233, 234-235, 230 N.E.2d 645 (1967) (defendant's admission that he had been at complainant's apartment not "material particular" on indictment for unlawful sexual intercourse with feeble-minded female); Commonwealth v. Taschetta, 252 Mass. 158, 160, 147 N.E.2d 553 (1925) (testimony by defense witnesses that defendant took woman to house and then left house with her a "material particular" on indictment for fraudulently enticing and taking away woman for purpose of unlawful sexual intercourse); Commonwealth v. Bucaulis, 6 Mass.App.Ct. 59, 64, 373 N.E.2d 221 (1978) (testimony of police officers regarding their observations of man and woman in lounge "material particular" in prosecution for knowingly having suffered presence of certain females for purpose of unlawful sexual intercourse in premises under defendant's control). Cf. Commonwealth v. Forde, 392 Mass. 453, 458, 466 N.E.2d 510 (1984) (undisputed fact of victim's death sufficient to corroborate defendant's confession to murder); Commonwealth v. DeBrosky, 363 Mass. 718, 728-730, 297 N.E.2d 496 (1973) (interpreting G.L. c. 233, § 201, providing no defendant shall be convicted solely on the testimony of an immunized witness). Because the defendant could not be convicted on the drugging charge without proof of the injection, facts probative on that point must be considered material particulars. In essence, the defendant would have us read the requirement of corroboration of a material particular as corroboration of a "disputed issue of material fact" as that phrase is used and understood in the consideration of ...