Com. v. Kruah

• Decision Date: 21 July 1999
• Docket Number: No. 97-P-2164,97-P-2164
• Citation: 712 N.E.2d 1182,47 Mass.App.Ct. 341
• Parties: COMMONWEALTH v. Anthony KRUAH.
• Court: Appeals Court of Massachusetts

Page 1182

712 N.E.2d 1182

47 Mass.App.Ct. 341

COMMONWEALTH v. Anthony KRUAH.

No. 97-P-2164.

Appeals Court of Massachusetts Suffolk.

Argued Jan. 14, 1999.

Decided July 21, 1999.

Dennis M. Powers, North Reading, for the defendant.

Joseph M. Makalusky, Assistant District Attorney, for the Commonwealth.

Present: JACOBS, SMITH, & SPINA, JJ.

SPINA, J.

A Superior Court jury found the defendant guilty of rape, assault with intent to commit rape, and threatening to commit an assault and battery. ¹ On appeal, the defendant claims trial counsel was ineffective because he (1) failed to object to the admission in evidence of an equivocal statement made by the defendant; (2) failed to object to an adoptive admission attributed to the defendant; and (3) failed to move in limine to preclude certain fresh complaint testimony. We affirm.

We summarize the evidence. The defendant and the victim lived in the same apartment building on Cheney Street in Boston. The victim had become friendly with the defendant's wife. All three had immigrated from the county of Nimba, Liberia, and were involved in a Liberian community group in Boston known as United Nimba Citizens' Council (UNICO).

One afternoon in January, 1992, the defendant appeared at the victim's apartment and asked to discuss a UNICO matter. The victim had been eating lunch, and invited him to sit in the living room. She finished her lunch as the defendant talked. When she stood to go to the kitchen, the defendant knocked her down from behind and tried to remove her pants. She resisted, biting him several times. The defendant managed to get on top of her, and choked her. He pulled her pants down part way, and digitally raped her. The victim reached for her dinner knife, then stabbed him in the chest. When he released his hold, she ran to the kitchen. Wielding a larger knife obtained in the kitchen, she drove the defendant from her apartment.

Upset, the victim telephoned her best friend, Macra Karter, who went right over to the victim's apartment. The victim related what the defendant had done to her, and that she had stabbed him. She told Karter she was going to call the police. Karter, also from Liberia and a member of UNICO, told her to forget about the incident and begged her not to go the court at the risk of bringing disgrace upon herself. The victim did not call the police.

Two days later, as Karter was walking to the victim's apartment, the defendant approached her, and together they entered. Karter noticed some bite marks on the defendant, so she pressed him for an explanation. He raised his shirt, exposing more wounds, and laughingly suggested that she ask the victim, who was present, how he got them. Pressed further, the defendant offered a Liberian expression, translated as "if luck is not in your face, it is in your strength." He then laughed and bragged about the rape, saying he was "not going to rest until [I] get" her.

Over the course of the next several months, the defendant seized several opportunities to pat the victim's buttocks and tell her that he liked her body. He often telephoned her, and he tampered with the locks on her door. She complained about the defendant's conduct to Thomas Grupee, president of the Liberian Community Association of Massachusetts and a member of UNICO's board of directors. The victim also told Grupee that the defendant had tried to rape her. Grupee told her not to make an issue of it, as these problems are "traditionally ... shameful." Nonetheless, Grupee confronted the defendant about the victim's complaint. The defendant told Grupee that the victim was his girlfriend, and that she was making much of nothing. He admitted that, once, she started to cry while they were having sex, and accused him of taking advantage of her. Grupee counseled him not to discuss the matter publicly, for the victim's sake. The defendant continued to contact the victim.

In January, 1993, the defendant and the victim became enmeshed in a vitriolic argument over a parliamentary matter during a UNICO meeting. The defendant had been elected UNICO's president in June, 1992, and he refused to recognize her to speak during the January meeting. A special meeting of UNICO was convened in April, 1993, to seek resolution of ongoing problems between them, seemingly unrelated to the rape. Community elders asked the victim to explain the problems. Aware of the Liberian cultural prohibition against public accusations of rape, the victim nevertheless told the elders that the defendant had raped her. The elders responded by denouncing her for having made the accusation. To hold their attention, she spoke of the incident as the defendant's desire to have sex with her rather than accuse him of rape, and proceeded to relate all the details. The elders asked the defendant for his response, and he denied the allegation. One of the elders, a friend of the defendant, referring to the stab wound, proposed that "if what she is saying is not true, then take off your shirt." The defendant refused. The elders laughed, and asked the defendant to apologize to the victim "for the commotion that had been going on between" them. Initially refusing to apologize, he eventually came around, saying, "Okay, I'm sorry." The elders toasted the peace that had been achieved, and told the victim and the defendant to get on with their lives. They told the victim to discuss the incident no further because it could create trouble for the defendant and disgrace their country back home, as well as their new country.

Disappointed that the elders had not treated her complaint with greater seriousness, the victim resigned from UNICO. The defendant continued to pursue her. She discussed the matter again with Grupee, who conceded that it could not be resolved within the community. She told him she would report the rape to the police. The victim received calls from numerous members of UNICO urging her not to involve the police. The defendant threatened her with deportation because she did not have a green card, and said she would not be believed if she went to the police. He also threatened to have her killed. She eventually went to the police, at the expense of being ostracized from her community.

1. The defendant first argues that counsel should have objected to the testimony regarding his apology at the April, 1993, meeting on the ground that the apology was equivocal, and, therefore, according to the defendant, inadmissible. There was evidence that several problems were discussed at the meeting, including his intentional misdelivery of a package to the victim's family in Liberia, his refusal to recognize her to speak at the January meeting, and the rape. The elders' request for an apology did not specify any particular wrong. The defendant's contention that the apology was so attenuated, Commonwealth v. Gilbert, 423 Mass. 863, 871, 673 N.E.2d 46 (1996), as to lack relevance, Commonwealth v. Morgan, 422 Mass. 373, 379, 663 N.E.2d 247 (1996), is without merit.

To establish ineffective assistance of counsel, a defendant must prove "serious incompetency, inefficiency, or inattention of counsel--behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer--and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). That is, the defendant must show "that better work might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115, 364 N.E.2d 1260 (1977).

"[E]quivocal statements by a criminal defendant are generally admitted in evidence." Commonwealth v. Estep, 38 Mass.App.Ct. 502, 507 n. 1, 649 N.E.2d 775 (1995), quoting from Commonwealth v. Valliere, 366 Mass. 479, 488, 321 N.E.2d 625 (1974). The apology, even if equivocal, was properly admitted. Commonwealth v. Earltop, 372 Mass. 199, 201-202, 361 N.E.2d 220 (1977). Commonwealth v. McGrath, 351 Mass. 534, 538, 222 N.E.2d 774 (1967). See Liacos, Massachusetts Evidence § 8.8.5, at 472 (6th ed. 1994 & Supp.1999). Whether the apology encompassed the rape was a question for the jury. See Commonwealth v. Pearce, 427 Mass. 642, 648, 695 N.E.2d 1059 (1998). Counsel was not ineffective for failing to object to the proper admission of the defendant's statements. See Commonwealth v. Alvarez, 422 Mass. 198, 211, 661 N.E.2d 1293 (1996).

Even if the apology were improperly admitted, the defendant failed to show that an objection would have "accomplished something material for the defense." Ibid., quoting from Commonwealth v. Satterfield, 373 Mass. at 115, 364 N.E.2d 1260. The apology was merely cumulative of the defendant's more detailed admission to Grupee that the victim accused him of taking advantage of her and started to cry while they were having sex, as well as the statements he made to Macra Karter two days after the rape.

2. The defendant next argues that counsel's failure to object to evidence of his refusal during the April, 1993, meeting to raise his shirt to permit UNICO board members to see if he had a scar where the victim said she stabbed him, permitted the jury to consider an adoptive admission for which there was insufficient foundation. The record indicates that while counsel did not object, she preserved the issue by opposing admission of the evidence during a lengthy side-bar conference, maintaining that "if he refused to raise his shirt that is not an admission of guilt." See Mass.R.Crim.P. 22, 378 Mass. 892 (1979).

Even were we to conclude that counsel did not properly object, the evidence was properly admitted. "Where a party is confronted with an accusatory statement which, under the circumstances, a reasonable person would challenge, and the party remains silent or responds equivocally, the accusation and the reply may be admissible on the theory that the party's response...