Com. v. Medeiros

• Decision Date: 26 January 2009
• Docket Number: No. 07-P-418.,07-P-418.
• Citation: 73 Mass. App. Ct. 571,899 N.E.2d 905
• Parties: COMMONWEALTH v. Kevin G. MEDEIROS.
• Court: Appeals Court of Massachusetts

899 N.E.2d 905

73 Mass. App. Ct. 571

COMMONWEALTH v. Kevin G. MEDEIROS.

No. 07-P-418.

Appeals Court of Massachusetts, Plymouth.

Argued May 6, 2008.

Decided January 26, 2009.

Stacey Gross Marmor, Northboro, for the defendant.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

Present: BERRY, SMITH, & RUBIN, JJ.

RUBIN, J.

In this criminal case, the defendant was convicted of rape of a child with force, assault and battery, and aggravated rape, with the only evidence supporting aggravation being that the rape was committed as part of a joint venture. His codefendant, who is not a party to this appeal, was convicted only of assault and battery, and not of rape.¹ The defendant contends that his conviction of aggravated rape cannot stand in light of his codefendant's acquittal on the rape charges, and that his trial counsel was ineffective.

I.

We summarize the evidence in the light most favorable to the Commonwealth. At the time of the rape, the victim was fifteen years old, and lived during the summer with her mother in a campground in Rochester. One evening in July, 2003, after an argument with her mother, she wandered the campground. She met her friend, who was about fourteen years old, and later that night, they ran into the defendant and codefendant, both of whom she knew. The four walked together, and between 11:00 P.M. and midnight, the friend departed, leaving the victim with the defendant and the codefendant.

The three arrived in the area of a deserted campsite. The victim stopped and bent down to tie her shoe. When she stood up, the defendant and the codefendant were behind her, one on each side. They each grabbed one of her arms and pulled her toward the vacant tent. The victim tried "wiggling away from them." The codefendant unzipped the tent, and the defendant pushed the victim inside.

The victim, who was the sole witness for the Commonwealth, testified that, at that point, she "thought they were joking around." The defendant laid on the tent floor a box spring and mattress that had been pushed up against a side of the tent. The codefendant closed the front of the tent.

The defendant pushed the victim onto the mattress, and pulled off both her T-shirt and tank top. She told him to stop. The codefendant held up her arms so that she could not push the defendant away. The defendant removed her pants and undergarments, leaving her naked on the bed.

The codefendant kept holding the victim. She told the defendant and the codefendant to stop. Although she struggled, the defendant raped her vaginally while the codefendant held the victim's left leg.

According to the victim's testimony, the defendant continued for "a couple of hours," but after twenty or thirty minutes, the codefendant left the tent, saying "he was getting out of there because he didn't need this on him." The victim was crying and speaking loudly. She testified that she wanted it over. The defendant then forced the victim to engage in oral sex for approximately twenty minutes.

After the defendant left, the victim gathered her clothing and dressed. She returned to her campsite. At that point, it was approximately 3:00 A.M. The victim did not tell her mother what had happened because her mother was angry at her for keeping late hours. In the morning, her mother confronted her about having been out so late. The mother told the victim that she would be sent to New Hampshire to live with her father because she was getting in trouble at the campsite. Her mother left and when she returned she was upset because she had heard something had happened between the victim and the defendant. The mother asked the victim what had happened. The victim told her mother about the rape, her mother called the police, and the victim was ultimately taken to the hospital.

The defendants, who were represented separately, called one witness, another resident of the campground, who testified that the victim was, in fact, with a group of girls during the time the assault was alleged to have occurred. In their closing arguments, the defendants argued that the victim fabricated the claim of rape to avoid being sent away from the campground by her mother.

II.

The defendant argues that, because the codefendant was acquitted of all the rape charges against him, and convicted only of simple assault and battery, the defendant's conviction of aggravated rape based on a theory of joint venture as the aggravating factor was impermissible. Joint venture liability means that two people have acted together. Proof of a joint venture requires the Commonwealth to show "that the defendant was present at the scene of the crime, that he had knowledge that another intended to commit the crime and shared the intent to commit the crime and that, by agreement, he was willing and available to help the other if necessary." Commonwealth v. Netto, 438 Mass. 686, 701, 783 N.E.2d 439 (2003).

Had the codefendant, convicted only of assault and battery, been found a joint venturer with the defendant, the jury could have convicted the codefendant of rape on the joint venture theory. The jury acquitted him instead. The codefendant was present at the scene of the crime, and the defendant's argument proceeds on the premise that the codefendant's acquittal of rape necessarily means that the jury found that he either did not share the intent to commit the crime with the defendant, or that he was not willing and able by agreement to help him. This would mean that the jury found no joint venture.² And in the absence of a joint venture, the defendant argues, he could not be convicted of aggravated rape in this case, where the only aggravating factor of which evidence was presented and on which the jury was charged was that the crime was committed as part of a joint venture.³

There is some logic to the defendant's argument. Our general rule is that "mere inconsistency in verdicts, one of which is an acquittal, will not render the verdict of guilty erroneous even though such inconsistency may have indicated the possibility of compromise on the part of the jury." Commonwealth v. Scott, 355 Mass. 471, 475, 245 N.E.2d 415 (1969). We have said that this "rule recognizes the power, possibly salutary, of juries to compromise and to act out of leniency." Commonwealth v. Diaz, 19 Mass.App.Ct. 29, 33, 471 N.E.2d 741 (1984). The defendant, however, points to an arguably contrary, long-standing rule in the context of conspiracy that "if at a single trial for conspiracy all but one of the defendants are acquitted of the charge, a conviction of the remaining defendant must be set aside." Commonwealth v. Cerveny, 387 Mass. 280, 285, 439 N.E.2d 754 (1982). The defendant argues in essence that just as "one cannot commit a conspiracy alone," ibid., one cannot commit a joint venture alone, and that, consequently, in the face of his codefendant's acquittal on the rape charges, his conviction of aggravated rape cannot stand.

When presented with a similar argument in Commonwealth v. Wojcik, 43 Mass.App.Ct. 595, 602, 686 N.E.2d 452 (1997), we indicated in dictum that it might be correct. We distinguished that case from the conspiracy cases, and affirmed the convictions, saying, "We are not faced here with a circumstance in which a defendant was convicted of a crime based on joint enterprise and other defendants were acquitted of similar charges in the same trial." Ibid. We also used similar language in affirming a conviction in Commonwealth v. Coleman, 30 Mass.App.Ct. 229, 235, 567 N.E.2d 956 (1991), saying, "We do not have here a defendant convicted of a crime based on joint enterprise and all other defendants acquitted of similar charges in the same trial," though we noted in a footnote that "[t]he conclusion that this verdict configuration in the same trial requires reversal of all guilty verdicts is not a necessary one." Id. at 235 n. 6, 567 N.E.2d 956, citing United States v. Bucuvalas, 909 F.2d 593 (1st Cir.1990), and Commonwealth v. Nighelli, 13 Mass. App.Ct. 590, 595, 435 N.E.2d 1058 (1982). Finally, an early case suggests that the rule we apply in conspiracy cases applies more broadly to contexts like that involved here. See Commonwealth v. Slate, 77 Mass. 60, 11 Gray 60, 63 (1858) (suggesting that the rule for conspiracy cases applies to any offense that "involve[s] from its character, as in the case of a charge of a conspiracy or a riot, the united act of two or more individuals to constitute an offence in either").

The defendant's argument, though, ultimately is foreclosed by our more recent decision in Commonwealth v. Clements, 51 Mass.App.Ct. 508, 747 N.E.2d 682 (2001), S.C., 436 Mass. 190, 763 N.E.2d 55 (2002).⁴ In Clements, the defendant was convicted of murder in the second degree as a joint venturer. Id. at 509, 747 N.E.2d 682. His codefendant was acquitted of all charges. Ibid. Yet his codefendant was the only person who could have been his principal. See id. at 522-523, 747 N.E.2d 682. See also id. at 536, 747 N.E.2d 682 (Duffly, J., dissenting) ("[T]he Commonwealth must have presented evidence sufficient to establish, beyond a reasonable doubt, that [the codefendant] was the principal in the shooting"). Indeed, a review of the transcript in the Clements case reveals that the jury were instructed they could convict the defendant on a joint venture theory only if he was acting as a joint venturer with his codefendant.

In Clements, "[w]e ... reject[ed] the defendant's claim that the verdict of acquittal of [the codefendant] and the verdict of guilty as to the defendant on the theory of joint venture are inconsistent verdicts which require reversal of the defendant's conviction of second degree murder." Id. at 523, 747 N.E.2d 682.⁵ We stated that "mere inconsistency of verdicts does not render a guilty verdict erroneous." Ibid., quoting from Commonwealth v. Robinson, 48 Mass.App.Ct. 329, 341, 720 N.E.2d 480 (1999).

Clements is controlling here. The defendant therefore is not...