Com. v. King

• Decision Date: 13 October 1982
• Parties: COMMONWEALTH v. Michael KING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 248

441 N.E.2d 248

387 Mass. 464

COMMONWEALTH v. Michael KING.

Supreme Judicial Court of Massachusetts Norfolk.

Argued May 3, 1982.

Decided Oct. 13, 1982.

Elizabeth A. Lunt for defendant.

Charles J. Hely, Asst. Dist. Atty., for the Commonwealth.

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

NOLAN, Justice.

The defendant was convicted after a jury trial of unlawful, unnatural sexual intercourse with a child under sixteen years of age. G.L. G.L. c. 265, § 23. The defendant appealed from his conviction, and new counsel was appointed. The defendant then filed a motion for a new trial and a motion to dismiss. The trial judge denied both motions. The case is before us on a consolidated appeal of the conviction, the denial of the motion for a new trial, and the denial of the motion to dismiss. The defendant argues that the judge erred: (1) in denying the motion to dismiss, which was based on the ground that the indictment failed to charge an offense; (2) in admitting evidence of unlawful sexual acts with the victim's brother; (3) in admitting hearsay evidence of statements made by the victim; (4) in admitting the defendant's statements made in violation of his constitutional rights; (5) in admitting testimony concerning a witness who did not take the stand; (6) in admitting testimony concerning sexual paraphernalia and a gun; (7) in failing to enter a required finding of not guilty; (8) in misstating the evidence in his instructions to the jury; and (9) in denying the defendant's motion for a new trial. The defendant also argues that he was denied effective assistance of counsel at the trial. We have examined each of the defendant's contentions and find that they are without merit. We affirm the judgment of conviction.

The testimony at trial follows. The victim was eleven years old at the time of trial. The defendant was her mother's boyfriend and lived with the victim, her mother, her brother and her sister from sometime in 1977, until September, 1978. The victim testified that while the defendant was living with the family he came to her bedroom and touched her vagina, outside and inside, with his fingers, his tongue and a vibrator. She also testified that the defendant made her touch his penis with her fingers and her mouth. In addition, she testified that the defendant caused a dog to lick her vagina. Although the victim was unable to specify the number of times these acts occurred, she stated that they happened more than once.

The victim's aunt testified that on September 14, 1978, the victim's mother came to her house. The mother brought with her a box and bag containing sexual paraphernalia including a vibrator. Several days thereafter the mother brought her children to the aunt, and they remained with her until they were placed in foster care. The aunt testified that she and her son met the defendant at a restaurant on September 26, 1978. She testified that the defendant told her and her son that he had engaged in sexual acts with the victim four times a week and was having oral sex with the victim's younger brother more frequently. The aunt further testified that the defendant told them he had been using a dog on the children. The defendant was carrying a gun at the meeting.

Barbara DeNatale, a Qunicy police officer, testified that she interviewed the aunt on September 27, 1978, and took the box and bag containing sexual paraphernalia. She also testified that on October 3, 1978, she interviewed the victim, then nine years old, at a hospital in the presence of a State trooper, a social worker, and a counselor. Over defense counsel's objection, Officer DeNatale repeated what the victim had told her concerning the defendant's sexual acts. Her testimony essentially corroborated the victim's testimony at trial.

The defendant testified, denying that he had ever had sexual contact with the victim. He admitted to meeting the aunt and her son in the restaurant but denied that he had a gun, and denied that he told her that he had sexual contact with the victim. On cross-examination, the prosecutor questioned the defendant about statements he made to officers at the Weymouth police station. Portions of the transcript of that interview were read to the jury by the prosecutor.

1. The indictment. The defendant was convicted on an indictment which charges that he, "on divers dates and times from on or about the first day of January, 1977 through on or about the twenty-eighth day of September, 1978 at Weymouth in the County of Norfolk, did unlawfully have sexual intercourse with and did abuse [the victim], a child under sixteen years of age." The defendant argues, since rape of a child is not a continuing offense, the indictment fails to set forth any offense known to the law because it charges rape of a child as a continuing offense. He contends that the indictment is defective and ought to be dismissed. We do not agree. The indictment clearly states an offense, the offense of statutory rape. The named victim is specifically alleged to be "a child under sixteen years of age." The time of the offense is not an element of this crime and need not be precisely alleged. G.L. c. 277, § 20. See Commonwealth v. Stasiun, 349 Mass. 38, 47, 206 N.E.2d 672 (1965); Commonwealth v. Dutney, 4 Mass.App. 363, 374, 348 N.E.2d 812 (1976).

The defendant further argues that the indictment is defective because it violated his constitutional rights (1) to be informed of the charges against him, (2) to present a defense, and (3) to be convicted only by a unanimous jury verdict. ¹ We note that these arguments were not raised before or during the trial but are raised for the first time by new counsel appointed for the appeal. Trial counsel could have requested a bill of particulars but failed to do so. G.L. c. 277, § 34. Mass.R.Crim.P. 13(b)(1), 378 Mass. 871 (1979). ² See Commonwealth v. Soule, 6 Mass.App. 973, 974, 384 N.E.2d 235 (1979); Commonwealth v. Downey, 288 Mass. 147, 149, 192 N.E. 512 (1934). The defendant does not allege that he would have presented his defense any differently if he had been informed of the exact dates on which the alleged sexual acts occurred. He did not present a defense of alibi or nonaccess to the victim. He in fact testified that during the twenty-month period alleged in the indictment he lived in the same residence as the victim. His defense was that while living with the victim, he did not engage in any sexual acts with her. In addition, it is clear from the trial transcript that the victim, who was nine years old at the time of the acts, was unable to specify the exact dates on which the sexual acts occurred. See Commonwealth v. Vernazzarro, 10 Mass.App. 897, 409 N.E.2d 1326 (1980). In view of the above considerations, we do not find a convincing basis for holding that the indictment should have been dismissed for failure to specify with more particularity the dates of the sexual acts.

2. Evidence of other crimes. The victim's aunt, a prosecution witness, testified that the defendant had told her that he was having sex with the victim approximately four times a week. She further testified that the defendant had admitted having oral sex with the victim's younger brother, and had admitted using a dog on the victim as well as on her brother. Defense counsel objected to the testimony concerning the brother. The judge instructed the jury that the defendant was not charged with having sexual relations with the brother and that they should not use this evidence as relevant to the issue of his guilt on the charge of having sexual relations with the victim. The judge stated that the evidence could be used only as the jury might find it relevant to the defendant's state of mind, intention and pattern of conduct during the time of the alleged crimes. There was no further testimony concerning the victim's brother and the evidence was not alluded to in the closing arguments or the judge's charge. The defendant argues that the admission of this evidence was reversible error.

Evidence of independent past crimes unconnected with the crimes for which the defendant is on trial may not be used to show commission of the crime charged. Commonwealth v. Imbruglia, 377 Mass. 682, 695, 387 N.E.2d 559 (1979). There are, however, many exceptions to this rule of evidence. For example, when "the evidence is not too remote in time, or is connected with the facts of the case, it may be admitted to establish 'knowledge, intent, motive, method, material to proof of the crime charged.' " Id., quoting from Commonwealth v. Murphy, 282 Mass. 593, 598, 185 N.E. 486 (1933). See generally P.J. Liacos, Massachusetts Evidence 420-422 (5th ed. 1981). "One of the recognized exceptions invariably followed in this Commonwealth is that, when a defendant is charged with any form of illicit sexual intercourse, evidence of the commission of similar crimes by the same parties though committed in another place, if not too remote in time, is competent to prove an inclination to commit the [acts] charged in the indictment ... and is relevant to show the probable existence of the same passion or emotion at the time in issue." Commonwealth v. Bemis, 242 Mass. 582, 585, 136 N.E. 597 (1922). We also have held that testimony concerning other sexual contacts between the parties is admissible to "render it not improbable that the act might have occurred." Commonwealth v. Piccerillo, 256 Mass. 487, 489, 152 N.E. 746 (1926). In Commonwealth v. Machado, 339 Mass. 713, 714-715, 162 N.E.2d 71 (1959), we held that testimony that the defendant was seen partially naked and in bed with the victim six months after the date of the statutory rape charged in the indictment was admissible to show the existence of the "same passion or emotion on the defendant's part." On the other hand, evidence of a separate sexual act with another person is inadmissible if it is unconnected in time, place, or other relevant circumstances to the...