Com. v. Mamay

Decision Date15 May 1990
Citation407 Mass. 412,553 N.E.2d 945
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Bernard Grossberg, Boston, for defendant.

Michael Fabbri, Asst. Dist. Atty., for Com.


NOLAN, Justice.

A jury convicted the defendant on four indictments charging indecent assault and battery and one indictment charging rape. 1 The defendant appealed. We transferred the case to this court on our own motion, and we now affirm.

On December 4, 1984, a Middlesex County grand jury returned nine indictments against the defendant. After pleading not guilty to all the offenses charged, the defendant filed a motion for relief from prejudicial joinder. The Commonwealth moved for joinder of six of the indictments which it claimed were related. Each alleged an indecent assault and battery or rape by the defendant doctor upon a female patient in his office. The trial judge allowed the Commonwealth's motion and denied the defendant's motion.

At trial, the victims all testified. 2 Victim A testified that she was twenty-three years old when she first saw the defendant on January 5, 1984. After conducting an examination of Victim A, the defendant asked her to step into an adjoining office. In the adjoining office the defendant asked Victim A whether she could cook, whether she "pleased" her boy friend, and how often she had sex with her boy friend. The defendant instructed Victim A to refrain from sex and to schedule another appointment. On January 10, 1984, Victim A returned to the defendant's office, and he once again asked her questions regarding her sex life. On January 24, Victim A returned for a third visit. At this time, the defendant again asked Victim A whether she knew how to "please a man" and asked whether she would "please him." The defendant then approached Victim A and began to rub his pelvic area against her, all the while continuing to ask her to please him. Victim A sat down, frightened. The defendant then took Victim A's arm and placed her hand on his zipper. Victim A pulled her hand away and said "No." A nurse then opened the door and told the defendant that there were several patients waiting. The defendant instructed Victim A to return. She scheduled an appointment but did not return. On January 27, 1984, Victim A told her boy friend of the defendant's acts. The boy friend testified as a "fresh complaint" witness.

Victim B testified to a gynecological examination the defendant performed on February 16, 1984. While Victim B was lying on the examining table with her legs raised in the "stirrups," the defendant asked her whether she gave her boy friend "head," whether she enjoyed sex, what kind of sex she enjoyed, whether she enjoyed "sixty-nine," and whether she had orgasms when she had sex. Without gloves, the defendant then began an examination by inserting a speculum into Victim B's vagina. After removing the speculum, the defendant inserted two fingers in Victim B's vagina; the defendant was still gloveless. Placing his other hand on the victim's stomach, the defendant began to move his fingers slowly in and out of Victim B's vagina for a period of three or four minutes. After removing his fingers from Victim B's vagina, the defendant examined her breasts by placing himself between her legs and reaching up to her chest. The defendant rubbed his pelvic area against Victim B's pelvic area throughout the breast examination, which lasted three or four minutes. The defendant then attempted to stick his finger (still gloveless) in Victim B's rectum, but stopped when she screamed. On March 8, 1984, Victim B returned to the defendant for an examination that took place without incident. This was the only examination during which a nurse was present. On March 15, 1984, she returned for another visit. On that date, the defendant placed a gloveless finger in Victim B's vagina, he again rubbed his pelvic area against her during a breast examination, and again tried to place his finger in her rectum. March 15 was the date of Victim B's last visit with the defendant. At some time, Victim B told her boy friend of her experiences with the defendant, and he testified as to Victim B's complaint.

Victim C testified that she was seventy-eight years old during the summer of 1984, when she visited the defendant's office. The defendant told Victim C that she looked pretty, and he stuck his tongue in her mouth. The defendant then picked Victim C up, placed her on the examining table and pulled her pants and underwear down. The defendant put his penis into Victim C's rectum. She cried out in pain. The defendant then put his penis into her vagina. The defendant "satisified" himself. Victim C testified that her pants were bloodied when she returned home and that she told her husband of the rape. The husband testified as a fresh complaint witness and also testified that he saw the bloodied pants.

Victim D testified about an examination on January 30, 1984, during which the defendant put his fingers in her vagina for "at least two minutes." When he removed his fingers he "flicked" her clitoris "three or four times." Victim D noticed that the defendant did not wear gloves. The defendant then began to pinch Victim D's nipples, but he stopped when she told him that it was painful. The defendant then asked Victim D whether she engaged in oral sex, what positions she had sex in, how often she had sex, whether she enjoyed "giving head," and if she would do it to him. Victim D responded, "No way." At a subsequent visit on February 9, 1984, the defendant again asked Victim D a series of questions about her sex life. Suddenly, as Victim D was sitting partially disrobed on the examining table, the defendant pulled her from the table and onto his lap, as he sat on a chair. The defendant put his hand in between Victim D's legs and began rubbing her pelvic area. Victim D got up, dressed, and left. Victim D's boy friend testified as a fresh complaint witness.

The Commonwealth presented two experts. First, Dr. Susan Robinson testified as an expert on obstetrics and gynecology. Dr. Robinson testified that in a normal pelvic examination, a gynecologist would wear gloves, would avoid touching the clitoris, and would have his finger inside the patient's vagina for no more than thirty seconds to one minute. In a normal breast examination if the patient is lying down, Dr. Robinson testified that the doctor would stand to the side of the patient, not between her legs. Dr. Robinson, in response to a series of hypothetical questions, opined that a doctor who did not wear gloves during a vaginal inspection, who plunged his fingers in and out of a vagina for from three to five minutes, who rubbed his crotch area against the patient's crotch area during a breast examination, and who "flicked" a patient's clitoris three or four times, would not be acting in the usual course of his professional practice for a legitimate medical purpose. The Commonwealth also presented Ann W. Burgess, whom the court qualified as an expert in the field of rape and sexual assault syndrome (or "rape trauma syndrome"). She had conducted a study of the behavior of rape victims.

The jury convicted the defendant of indecent assault and battery on Victim A, Victim B, Victim C, and Victim D. The jury also convicted the defendant of rape of Victim C. The defendant raises a number of issues on appeal.

1. Joinder. The defendant argues that joinder of the six indictments for trial was improper. Joinder is governed by Mass.R.Crim.P. 9, 378 Mass. 859 (1979). Rule 9(a)(3) provides that, upon motion, a trial judge shall join related offenses for trial unless joinder is not in the best interests of justice. Rule 9 provides that two or more offenses are "related" when "they are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan." Joinder is a matter to be resolved by the trial judge in his discretion. Commonwealth v. Hoppin, 387 Mass. 25, 32, 438 N.E.2d 820 (1982).

Each of the six indictments joined for trial in this case involved allegations of criminal sexual conduct. Each victim was a patient of the defendant. Each incident took place in the defendant's office during the course of medical treatment. These offenses were a series of criminal episodes which were part of a scheme whereby the defendant used his position of authority and trust to commit sexual crimes upon the female patients visiting his office. See Commonwealth v. Pope, 392 Mass. 493, 502-503, 467 N.E.2d 117 (1984) (sexual offenses which took place in same hotel involving different victims properly joined). The defendant argues that the offenses occurred over an eight-month period and each involved different facts. Where, as here, there is such a similarity in the method by which the defendant committed the various offenses, we think that an eight-month time period does not make the offenses unrelated. The offenses all took place at the same location, and the defendant used the same "scheme" in each case. The slight factual variations in each case are not controlling since each charge involved a sexual offense in the doctor's office when the patient submitted herself to the doctor for a medical examination. In short, joinder was permissible under the standards of rule 9.

In addition to applying the "technical requirements" of rule 9, however, the judge must "decide the question in the context of the guarantee of a fair trial for every defendant." Commonwealth v. Sylvester, 388 Mass. 749, 758, 448 N.E.2d 1106 (1983). In particular, the propriety of joining any one of the six indictments turns, in large measure, on whether evidence of the other five offenses would have been admissible at a separate trial on each indictment. Commonwealth v....

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