Com. v. McJunkin

• Decision Date: 29 April 1981
• Parties: COMMONWEALTH v. Thomas J. McJUNKIN (and three companion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 1259

418 N.E.2d 1259

11 Mass.App.Ct. 609

COMMONWEALTH v. Thomas J. McJUNKIN (and three companion cases ¹).

Appeals Court of Massachusetts, Plymouth.

Argued Oct. 15, 1980.

Decided March 26, 1981.

Further Appellate Review Denied April 29, 1981.

Murray P. Reiser, Boston, for Thomas J. McJunkin.

John C. Martland, Boston (Jordan L. Ring, Boston, with him), for Richard A. Dicenso.

John P. Corbett, Asst. Dist. Atty., for the Commonwealth.

Before BROWN, ROSE and PERRETTA, JJ.

PERRETTA, Justice.

The defendants were convicted of kidnapping, G.L. c. 265, § 26, and assault and battery by means of a dangerous weapon (a knife), G.L. c. 265, § 15A. They were acquitted of related, but separate, charges of rape, G.L. c. 265, § 22, and assault and battery with a hatchet. On appeal they claim: (1) that the Commonwealth failed to present to the grand jury evidence exculpating them of the alleged rape; (2) that the judge failed to comply with Mass.R.Crim.P. 24(a) (1), 24(b), and 28(d)(2), 378 Mass. ---, ---, --- (1979); (3) that their seating accommodations during their trial diluted their presumption of innocence; and (4) that a knife "similar" to that which they were alleged to have used against the victim was improperly received in evidence. We affirm the judgments.

The evidence presented to the jury was as follows. At about 4:30 P.M., on November 8, 1977, McJunkin went to the home of the victim, whom he had known since that summer, and invited her for a ride. She accepted, and when she approached the car with him, she saw Dicenso in the driver's seat and an intoxicated male in the front passenger seat. As she got into the back of the car with McJunkin, she noticed empty beer bottles on the floor. Other than the victim's complaints that Dicenso was speeding, the ride was without incident until McJunkin announced his need to relieve himself. Dicenso pulled off the road and into a sheltered area. McJunkin left the car, and the victim asked Dicenso to take her back home as soon as McJunkin returned. In response, Dicenso turned to the victim and put his hand over her mouth. He held a knife to her throat with his other hand. The victim stated that Dicenso, in effect, told her to be still and that he would just as soon kill her then and there.

After McJunkin returned to his place in the car and the doors were locked, Dicenso ordered the victim to climb over to the front seat. As she did so, she saw that Dicenso had a small hatchet in his lap. They next drove to another sheltered area where Dicenso again stopped the car, gave the knife to McJunkin, got in the back with the victim and took off her clothes. The victim testified that she was then raped, being "fully" penetrated for approximately four minutes by each defendant. She offered no struggle because of their number and weapons. When finished with her, they drove her to an area near her home. It was about 5:30 P.M. As they left her, they warned her to tell no one what had happened.

The victim's mother testified that when she arrived home from work, her daughter was in her room, crying. When she inquired of her daughter as to why she was crying, the victim related what had been done to her. The next morning, the mother took the victim to a hospital where she was examined by one Dr. James Ladd.

Dr. Ladd testified that his examination failed to reveal any sperm in the victim's vagina or any bruises on her body. He did observe an excoriation on the right inner side of the opening to her vagina. Because of the size of the speculum that was required to examine the victim, Dr. Ladd was of the opinion that at the time of his examination, which was about fourteen hours after the incident, the victim was "probably" a virgin.

Test results revealed the presence of seminal fluid on the victim's jeans and undergarments as well as on an area of the back seat of the car. When Dicenso was arrested, he voluntarily turned over to the police a knife and told them that he always carried it on the front seat of his car.

1. Evidence presented to the grand jury. ²

The defendants moved to dismiss the indictments charging them with rape on the basis that the Commonwealth withheld from the grand jury Dr. Ladd's opinion that the victim was probably a virgin when he examined her. ³ The grand jury minutes presented to us show that unlike her probable cause hearing and trial testimony concerning "full" penetration, the victim testified before the grand jury that the defendants "made me have sex with them." See Commonwealth v. Brown, --- Mass.App. ---, ---, ^a 403 N.E.2d 424 (1980). The minutes further show that a grand juror questioned a police witness as to whether the victim had been medically examined and if so, whether that examination indicated that the victim had been raped. The defendants complain that the responses of the police witness, who also had been at the probable cause hearing, and the prosecutor were misleading half-truths. ⁴ They claim that the prosecutor was ethically bound to relate all the aspects of Dr. Ladd's testimony to the grand jury. See Commonwealth v. St. Pierre, 377 Mass. 650, --- n. 6, ^b 387 N.E.2d 1135 n. 6 (1979). S.J.C. Rule 3:08, PF 7, --- Mass. --- (1980); The ABA Standards for Criminal Justice, Prosecution Function § 3-3.6(b) (2d ed. 1979) ("No prosecutor should knowingly fail to disclose to the grand jury evidence which will tend substantially to negate guilt"). The failure to be candid, their argument continues, required dismissal of the rape indictments and, now, reversal of their convictions.

The issue is not whether evidence exculpatory to the defendants was withheld from the grand jury; rather, it is whether dismissals of the indictments are required because "the integrity of the grand jury ... (was) impaired." COMMONWEALTH V. ST. PIERRE, 377 MASS. AT ---, 387 N.E.2D 1135,^C quoting from United States v. Cruz, 478 F.2d 408, 411 (5th Cir.), cert. den. sub nom. Aleman v. United States, 414 U.S. 910, 94 S.Ct. 259, 38 L.Ed.2d 148 (1973). See United States v. Gold, 470 F.Supp. 1336, 1353 (N.D.Ill.1979); Commonwealth v. Lincoln, 368 Mass. 281, 284-285, 331 N.E.2d 533 (1975); Commonwealth v. Gibson, 368 Mass. 518, 523-525, 333 N.E.2d 400 (1975); Commonwealth v. Robinson, 373 Mass. 591, 592-593, 368 N.E.2d 1210 (1977). See generally Costello v. United States, 350 U.S. 359, 362-364, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956).

We see no affront to or impairment of the grand jury investigation in this case. The doctor's opinion as to the victim's virginity, even if accepted, does not necessarily preclude either a rape indictment or conviction. The Commonwealth, in either proceeding, need only show forcible penetration, no matter how slight. Commonwealth v. McCan, 277 Mass. 199, 203, 178 N.E. 633 (1931). Commonwealth v. Coderre, 360 Mass. 869, 277 N.E.2d 677, 178 N.E. 633 (1971). Commonwealth v. Gallant, 373 Mass. 577, 584, 369 N.E.2d 707 (1977). Commonwealth v. Brattman, --- Mass.App. ---, ---, ^d 410 N.E.2d 720 (1980). See also R. Perkings, Criminal Law 155 (2d ed. 1969).

The doctor's testimony, unaccompanied by an explanation that the degree of penetration is irrelevant, might have served only to confuse the true question before the grand jurors. See Mallott v. State, 608 P.2d 737, 744 (Alaska 1980). (The defendant argued that certain evidence was exculpatory and should have been presented to the grand jury, but the court held that there was no prosecutorial impropriety because that evidence "could not have been presented to the grand jury in isolation without creating a misimpression" in the defendant's favor). Cf. Commonwealth v. Lincoln, 368 Mass. at 284-285, 331 N.E.2d 533. ⁵

The defendants were able to explore at length at the appropriate time, the effect of Dr. Ladd's testimony on the victim's credibility. "In a trial on the merits, defendants are entitled to a strict observance of all the rules designed to bring about a fair verdict. Defendants are not entitled, however, to a rule which would result in interminable delay but add nothing to the assurance of a fair trial." Costello v. United States, 350 U.S. at 364, 76 S.Ct. at 409. Because the prosecution has been "exonerated of 'playing an ignoble part,' nothing is left" of this issue upon which the defendants can urge a reversal of their convictions. Commonwealth v. Lincoln, 368 Mass. at 285, 331 N.E.2d 533.

2. Alleged violations of procedural rules.

a. Mass.R.Crim.P. 24(a)(1). The defendants requested but were denied the opportunity to make opening statements to the jury after that of the Commonwealth, pursuant to that portion of rule 24(a)(1) which provides: "The defendant may present an opening statement of his defense after the opening statement of the Commonwealth or after the close of the Commonwealth's evidence." 378 Mass. --- (1979). The defendants represented to the judge that their opening statements would preview the evidence which they intended to present during the Commonwealth's case, through cross-examination of the victim, her mother, and Dr. Ladd, and through the victim's medical and psychiatric history. They stated that the reasonableness of their belief that such evidence would be forthcoming was supported by the probable cause hearing transcript, of which they had a copy, and documents which they had properly obtained. They argue that because they had a reasonable basis for their opening statements, (cf. Commonwealth v. Martin, 372 Mass. 412, 419-420, 362 N.E. 407 (1977)), it was error not to allow them to exercise their right of election under rule 24(a)(1).

In making this argument, the defendants have included in their joint brief a schedule, or table, of their proposed opening remarks with specific page references to the probable cause hearing and trial transcripts to demonstrate that their opening statements would have been proper. We make two critical observations about this schedule: (1) a comparable recitation of the proposed openings was never presented to...