Com. v. Johnson

• Decision Date: 12 August 1996
• Docket Number: No. 95-P-301,95-P-301
• Citation: 41 Mass.App.Ct. 81,669 N.E.2d 212
• Parties: COMMONWEALTH v. Erick JOHNSON.
• Court: Appeals Court of Massachusetts

Page 212

669 N.E.2d 212

41 Mass.App.Ct. 81

COMMONWEALTH v. Erick JOHNSON.

No. 95-P-301.

Appeals Court of Massachusetts,

Suffolk.

Argued April 2, 1996.

Decided Aug. 12, 1996.

Daniel W. Rice, Boston, for defendant.

Nancy L. Hathaway, Assistant District Attorney, for the Commonwealth.

Before LAURENCE, KAPLAN and FLANNERY, JJ.

KAPLAN, Justice.

Charged on four indictments of aggravated rape, one of assault by means of a dangerous weapon, three of assault and battery, and one of threatening to commit a crime, the defendant Erick Johnson, upon trial by jury, was found not guilty of the rape charges, but guilty of the other charges. On his appeal from the convictions, the defendant claims that the judge erred in denying his motions for required findings of not guilty on the subsisting charges, in ruling on two evidentiary matters, and in denying corrective instructions regarding the Commonwealth's closing argument.

Commonwealth's case. The victim, thirty-nine years old at the critical time, testified that in early evening, August 25, 1992, she was at 649 Walk Hill Street, in the Mattapan section of Boston, the home of her boyfriend, Douglas Quarles (known as "Katz"). About 5:30 P.M., the defendant, Erick Johnson, then aged twenty-six, stopped by after work and visited with the victim and Katz, his friends. He stayed perhaps an hour and a half, leaving around 7 P.M. The victim left soon thereafter. The defendant returned to Katz's around 8 P.M. The victim had come back. The defendant used the telephone and left.

About 10:45 P.M. the defendant came to Katz's for the third time and stayed some thirty to forty-five minutes. He seemed distraught and was weeping. In a bedroom doorway, he had a conversation with the victim; Katz and one Steve Key were nearby but evidently could not overhear. The victim said the defendant asked her to walk with him to his "cousin's house" so that he could talk. The previous Friday, he had told the victim and Katz that his sister in Brockton had been killed. Wishing to comfort the defendant, the victim asked Katz if it was "okay" for her to go walking. Katz agreed, and the victim stepped out with the defendant. It was about 11:15 to 11:30 P.M. Now the defendant said the cousin lived on Tennis Road, Mattapan. ¹

At the defendant's suggestion, the pair stopped at 75 Mattapan Street, the nearby home of their friend Jerome Powell (a drug dealer, according to the defendant's later testimony). The visit was over in five minutes. Leaving Powell, the two took Fottler Road, then Almont Street toward Almont Park, on the way, as the defendant indicated, to the cousin's place.

Entering the park or playground--an area perhaps 750 by 950 feet, empty, moonlit--the defendant, "out of the blue," said, "You don't love Katz, you love me." The victim said she smiled: "What's wrong with you, you crazy?" A few minutes later, the defendant suddenly struck her across the face, knocking her and her glasses to the ground. The defendant pulled down the zipper of his pants. She screamed. He punched her in the face, put his hand over her nose and mouth, and said he would kill her if she didn't shut up. When he released his hand, she screamed again; he punched and kicked her. "[He] went under his shirt and pulled out something and he said it was a gun." She felt, pressed up her back, what she took to be a gun, although she did not see it. She ceased screaming. The defendant dragged her, with the object at her back, across a grassy area, then guided her, as she came upright, to a rocky, wooded section of the park.

The defendant pushed the victim to the ground and pulled off her panties and ordered her to undress. She did so. He had removed his shirt; she did not testify just how far he undressed. He penetrated her vaginally with his penis. He said, "You're not going to hurt me like Trina hurt me, you don't want Katz, you love me." He ordered her to fondle and suck him, which she did. He penetrated her twice more, and suggested anal intercourse but did not do it. With the attack finished, he threw the victim her dress. ² As she drew on her clothes, he said repeatedly that he would have to kill her because she was going to tell. He began to pull his shirt over his head. This gave the victim her chance to jump up and scream and run toward the nearest lit house, 37 Almont Street. She arrived yelling, "This guy is behind me, he's trying to kill me." She said she could hear the sound of "bushes behind me" as she ran.

Officer Karen Tognarelli appeared at the house about 12:10 A.M. in response to a call. Tognarelli testified that the victim was crying, disheveled, her dress on backward and inside out. The victim said she had been raped and gave her account of it. She asked to be taken to Katz's where she felt safe. Later she went by ambulance to Brigham & Women's Hospital where a rape kit was administered. About 1 A.M. the victim, wearing a hospital johnnie, was interviewed for an hour and a half or more by Officer Bernadette Izzard Stinson and again gave her account. ³

The victim testified that her right eye was swollen, discolored and puffy, both eyes red, her hand bruised; that she was soiled, covered in leaf fragments. Though Tognarelli did not observe physical injuries, Stinson corroborated the swollen eye. The medical record showed orbital edema of right eye, scratches to right thigh, mild suprapubic tenderness, and injury, though no fracture, to left hand. (It may be noted that the observations testified to occurred at different times.)

The Commonwealth's criminalist, Stanley Bogdan, testified that the victim's bra and slip were soiled, and the dress heavily so; the panties showed vegetation fragments, and a yellowish stain (testing negative for semen). Fingernail scrapings were clear of skin fragments and dirt. Head and pubic hair samples were referable only to the victim. Vaginal and genital swabs showed semen; oral swabs did not. ⁴

Defendant's case. Attacking the credibility of the victim, ⁵ the defendant suggests that she fabricated the rape story to avert Katz's wrath. The victim and Katz agreed that on June 14, 1992, the victim secured a restraining order against Katz after a violent fight in which Katz said, "No bitch leaves me, I'll fuck you up," stalked her with a knife, and bit her. As Katz chased after her, the victim fled for safety to the nearby home of Jerome Powell (the victim rather said that "Jerome happened to be outside"). Katz was convicted of assault with a dangerous weapon. In their testimony, Katz and the victim attributed the fracas to Katz's severe drinking from which, they said, he had recovered.

The defendant suggests that, after leaving Katz's shortly after the defendant's departure from his 5:30 P.M. visit on August 25, the victim may have been with Powell and then staged an arrival at the lit house beside the park. (This would conflict with the victim's account that she returned to Katz's before the defendant's 8 P.M. visit). The defendant sees some significance in the victim's omission to mention the late night stop at Powell's to Officer Tognarelli or Officer Stinson (see note 3, supra ). Responding to the idea that the victim could have acted to circumvent Katz, these two testified that their relationship improved after the June 14 episode; by August 25 they were on good terms, and the victim had no fear of Katz. ⁶

The defendant testified to the victim's possible reasons or motives for singling him out for false accusations. He said he had taken cocaine with the victim in 1991, that she gave him money to buy her drugs (supplied by Powell), and that she talked with him at Katz's during his 5:30 P.M. visit on August 25 and confronted him about money due her. He said he answered, "[I]'m not into that no more, I don't do drugs any more," but presumably that wouldn't have quelled her complaint. In his interview on August 26 with Officer Joseph Lally (see infra ), the defendant suggested that it was the victim's differences with his former girlfriend Trina that explained the victim's animus; he mentioned a drug debt but did not point to a confrontation with the victim on the matter on August 25. On her part, the victim denied she had given the defendant money to buy drugs and denied talking about drug money with the defendant on August 25. She admitted taking drugs with the defendant some three years before the attack, although not friends with him at the time, and she gave equivocal testimony about using crack cocaine in 1991, although also stating that she had been drug free since January, 1991.

The defendant's mother, Bessie Thompson joined the defendant in testifying that no sister of his had died, and the defendant said he had no cousin who lived in the Mattapan area. But the Commonwealth could suggest that the defendant lied on these points as a means of inveigling the victim into the walk. The route claimed by the victim from Katz's toward an alleged cousin on Tennis Road was curiously circuitous (particularly out of the way was the entry into the park) and thus, the defendant contended, unlikely. The riposte was that the victim did not care that the walk was roundabout as her purpose was to talk to the defendant and console him.

By way of alibi, the defendant, while admitting to a visit at Katz's at 5:30 P.M. on August 25, denied any later visits that day. ⁷ After leaving Katz's, he said, he went to his mother's house, 222 Almont Street, Mattapan. As he started in that direction, the victim, unprompted by him, left Katz's and walked behind him for a while, then turned away. He spent several hours at his mother's place, then went to the house of William Sheffield, 717 Walk Hill Street, Mattapan, arriving about 8:30 P.M. He drank beer and talked with Sheffield and Sheffield's friends until he fell asleep on the porch. Some time that night he awoke, walked to a room he had rented at 47 Hiawatha Road to pick up some clothes and a toothbrush, then returned to...