Com. v. Manning

• Decision Date: 07 June 1978
• Citation: 376 N.E.2d 885,6 Mass.App.Ct. 430
• Parties: COMMONWEALTH v. Jan E. MANNING.
• Court: Appeals Court of Massachusetts

Page 885

376 N.E.2d 885

6 Mass.App.Ct. 430

COMMONWEALTH v. Jan E. MANNING.

Appeals Court of Massachusetts,Middlesex.

Argued April 12, 1978.

Decided June 7, 1978.

Charlotte Anne Perretta, Boston, for defendant.

Michael J. McHugh, Legal Assistant to the District Attorney, for the Commonwealth.

Before HALE, C. J., and KEVILLE and BROWN, JJ.

HALE, Chief Justice.

The defendant appeals from his convictions of assault and battery with a dangerous weapon (G.L. c. 265, § 15A), rape (as newly defined in G.L. c. 265, § 22, as amended by St.1974, c. 474, § 1), and kidnapping (G.L. c. 265, § 26) after a trial held pursuant to G.L. c. 278, §§ 33A-33G.

There was testimony that on July 9, 1976, the victim was walking to work when a car stopped alongside her. After a short conversation with the driver, who was alone in the car, the victim agreed to accept a ride to work. Instead of dropping her at her place of work the driver took the victim into the parking lot of an abandoned shopping center. He pulled his car behind the stores and produced a knife. When she refused to lie down as he directed, her assailant tightened his arm around her neck and touched the knife to her throat. Then, as she complied with his order, he took handcuffs from the glove compartment and fastened her hands behind her back. The assailant (whom the victim later positively identified as the defendant) left the parking lot and drove around until he found a wooded area called the Greek Picnic Grounds. He stopped in the woods and removed the handcuffs from the victim's wrists after she promised not to scream or run away. He next led her further into the woods where he undressed her and forced her to perform an act of fellatio. The victim testified that the defendant also tried to insert his penis into her vagina, and she thought, although she was not sure, that penetration had occurred. The defendant then dressed and drove off, leaving her in the woods. The defendant's confession in his handwriting and signed by him confirmed all of the foregoing except that he denied vaginal penetration. The victim further testified that she walked to the house of a friend and called her mother, who called the police. The victim gave the police a detailed description, assisted them in making a composite drawing of her assailant, and later identified him and his car after a chance encounter on a highway. The defendant makes no objection on appeal to the identification procedures. The principal issues at the trial were issues of fact: whether the knife had in fact touched the victim so as to constitute a battery and whether there was sufficient evidence to support the charge of rape.

After his arraignment in the Superior Court, the defendant, on August 31, 1976, filed timely motions for discovery of the Commonwealth's case. These included motions for the defendant to be provided with exculpatory evidence, police department reports, discovery and inspection of tangible evidence, all criminal records of Commonwealth witnesses, a list of potential Commonwealth witnesses, statements of the defendant, statements of Commonwealth witnesses, grand jury minutes, statements of promises, inducements or rewards, and a bill of particulars. On November 18, one day after the jury were impanelled, the judge held a lobby conference to inquire into the status of the defendant's motion for a bill of particulars. The defendant at that time made an oral motion to dismiss the indictments on the ground that the Commonwealth had failed to provide the defendant with the requested discovery materials. The judge requested that the defendant put his motion in writing and the next day held an evidentiary hearing on the written motion.

After the hearing the judge found the following to be fact: The prosecutor responded to the defendant's motions on September 23, 1976, informed him that it was the policy of the judge then sitting in the motion session to hear only those motions which could not be agreed to, and invited defense counsel to call him to arrange a conference regarding the motions. Defense counsel and the prosecutor conferred by telephone, and the Commonwealth agreed to furnish all of the requested discovery materials. All the motions were allowed, as a matter of course, in the first session on September 28. Thereafter, on September 30, a copy of the grand jury minutes was forwarded to defense counsel. On October 26 there was a meeting either by chance or by pre-arrangement between the prosecutor and defense counsel at which defense counsel was furnished a copy of the defendant's signed statement. Defense counsel was at various times made aware of the "open file policy" imposed by the judge sitting in the first session. ¹ When the case was called for trial on November 17, the defendant announced that he was ready for trial. Between the November 18 lobby conference and the November 19 hearing on the written motion to dismiss the defendant was furnished with all of the discovery that he had requested. The judge denied the motion to dismiss in spite of the defendant's assertion, renewed on appeal, that the Commonwealth's compliance was too late and that he was prejudiced thereby in planning his defense.

1. The defendant's motion to dismiss the indictments was properly denied. The judge's findings (a) that counsel for the defendant took no steps prior to the impanelling of the jury to enforce the discovery motions (b) that all materials sought by the discovery motions had been delivered before the hearing was held, (c) that the Commonwealth's file was open to the defendant, and (d) that the defendant was not prejudiced by any delay in the delivery of the materials, were amply supported by the record. There was compliance with the mandates of the Supreme Judicial Court expressed in Commonwealth v. Stewart, 365 Mass. 99, 105-106, 309 N.E.2d 470 (1974), and Commonwealth v. Lewinski, 367 Mass. 889, 901-903, 329 N.E.2d 738 (1975).

2. There is no merit to the defendant's contention that testimony of three prosecution witnesses and one line in a medical report were admitted in violation of the "fresh complaint" doctrine as set out in COMMONWEALTH V. BAILEY, 370 MASS.--- , 348 N.E.2D 746 (1976)^A and Commonwealth v. Blow, 370 Mass. --- ^b, 348 N.E.2d 794 (1976). The testimony objected to was corroborative of the victim's testimony and was limited to its corroborative purpose by clear and forceful instructions by the judge. The medical report contained less than what the examining doctor testified to without objection on direct examination. Neither was there any "needless rehersal of the particulars of a gruesome crime" (Commonwealth v. Bailey, supra, 370 Mass. at --- ^c, 348 N.E.2d 746, at 752) such as would render the testimony more prejudicial than probative. See Commonwealth v. Bailey, ID. AT --- , 348 N.E.2D 746;^D Commonwealth v. Lund, --- Mass.App. --- ^e, 368 N.E.2d 1221 (1977). We disagree with the defendant that the admission of part of the medical report in this case was error under Commonwealth v. Spare, 353 Mass. 263, 265-266, 230 N.E.2d 798 (1967). That case does not aid the defendant.

3. There was sufficient evidence of sexual intercourse or unnatural sexual intercourse to permit the judge to instruct the jury as to rape under G.L. c. 265, § 22. See Commonwealth v. Gallant, --- Mass. --- ^f, 369 N.E.2d 707 (1977); Commonwealth v. GONZALES, --- MASS.APP.--- , 369 N.E.2D 1038 (1977)^G; Commonwealth v. Mamay, --- Mass.App. --- ^h, 369 N.E.2d 1036 (1977). This case was tried before the opinion of the Supreme Judicial Court in Commonwealth v. Gallant, supra, decided November 2, 1977, and the judge thus lacked the guidance of that case when he instructed the jury. He erroneously stated in his charge that unnatural sexual intercourse was a connection between the male organ and any part of the female's person. ² Unnatural sexual intercourse was defined in Gallant as including "oral and anal intercourse, including fellatio, cunnilingus, and other intrusions of a part of a person's body or other object into the genital or anal opening of another person's body." Gallant, supra, --- Mass. at --- ⁱ, 369 N.E.2d at 712. The definition given by the judge in this case was too broad; however, he immediately narrowed the definition and brought his charge into the context of the evidence as it had been presented to the jury. He informed the jury that if they found that there had been "oral sex" between the defendant and the victim, they would be warranted in concluding that there was "unnatural sexual intercourse." This instruction correctly stated the law as set out in Gallant. Moreover it was a correct statement of the law on the only unnatural act which could have been found by the jury on the evidence before them. Thus, we conclude that the charge on this matter, taken as a whole, diverted the jury's attention from the erroneous portion of the charge and properly directed their attention to the correct legal principle. Commonwealth v. Pinnick, 354 Mass. 13, 15, 234 N.E.2d 756 (1968). Commonwealth v. Benders, 361 Mass. 704, 707, 282 N.E.2d 405 (1972). Commonwealth v. Dominico, 1 Mass.App. 693, 721, 306 N.E.2d 835 (1974).

4. We agree with the defendant that it was error for the judge to charge the jury that in order to convict the defendant of assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A, it was not necessary for them to find that the knife came into contact with the victim. ³ Although the victim did testify that the knife touched her neck, her testimony was somewhat weakened on cross examination, and the jury could have disbelieved it. The defendant was entitled to a correct instruction on the elements of assault and battery by means of a dangerous weapon.

General Laws c. 265, § 15A, provides, in pertinent part: "(w)hoever commits assault and battery upon another by means of a dangerous weapon shall be punished . . ." (emphasis supplied). The plain words of ...