Com. v. Medeiros, SJC-10442

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtCordy
Citation456 Mass. 52,921 N.E.2d 98
Docket NumberSJC-10442
Decision Date11 February 2010
921 N.E.2d 98
456 Mass. 52
Supreme Judicial Court of Massachusetts, Plymouth.
Argued November 3, 2009.
Decided February 11, 2010.

[921 N.E.2d 100]

Stacey Gross Marmor, Northboro, for the defendant.

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



456 Mass. 52

Kevin G. Medeiros (defendant) and Walter Watson, Jr., were tried together before a jury for crimes arising out of a young woman's allegations of rape. They both were charged

456 Mass. 53

with aggravated rape, G.L. c. 265, § 22 (a); rape of a child under the age of sixteen with force, G.L. c. 265, § 22A; indecent assault and battery on a person fourteen years of age or over, G.L. c. 265, § 13H; and assault and battery, G.L. c. 265, § 13A. After the close of the evidence, the defendant and Watson prevailed on motions for required findings of not guilty on the charge of indecent assault and battery, leaving the jury to consider the remaining charges. The jury convicted Watson of assault and battery only. The jury convicted the defendant of all three charges. The defendant was sentenced to from seven to nine years in State prison for aggravated rape. He received concurrent five-year probationary sentences for rape of a child with force and assault and battery. On appeal, the Appeals Court affirmed the defendant's convictions. See Commonwealth v. Medeiros, 73 Mass.App.Ct. 571, 899 N.E.2d 905 (2009).

We granted the defendant's application for further appellate review principally to consider whether the defendant's conviction of aggravated rape must be reversed because Watson, the sole other participant in the rape, was acquitted of the same charge at the same trial. Because the charge of aggravated rape rested on the act's commission by "joint enterprise," G.L. c. 265, § 22 (a),1 and because the sole alleged perpetrators were tried together, we conclude that the jury's verdicts were fatally inconsistent. We also consider the defendant's claims of ineffective assistance of counsel and conclude that the defendant's counsel was not ineffective. As a result, we reverse the defendant's conviction of aggravated rape and enter judgment for the defendant on that charge. We remand the remaining convictions to the Superior Court for resentencing.

Trial. The Commonwealth called only one witness, the victim. She testified to the following sequence of events. On July 1, 2003, the defendant and Watson arrived at the Knight Look Campground in Rochester, where the victim lived with her

456 Mass. 54

mother and stepfather. At the time, the victim was fifteen years of age. The victim knew the two men, and the three of them spent the evening meandering around the campground, eventually pausing in front of a vacant tent so the victim

921 N.E.2d 101

could tie her shoe. When she stood up, Watson and the defendant pulled her into the tent. Inside, the three spoke for a few minutes—the victim testified that she thought Watson and the defendant were joking around—and then the defendant began undressing the victim against her will. Watson restrained the victim on a mattress while the defendant raped her vaginally. Watson left after approximately twenty to thirty minutes, but the defendant remained with the victim. After two hours, the defendant forced the victim to perform oral sex on him for approximately twenty minutes.

After the defendant left, the victim returned home to her campsite at about 3 A.M. She did not awaken her mother or stepfather because she feared her mother would be angry with her. The next day, her mother announced that the victim had been staying out too late and that she would be sent to spend the rest of the summer with her father in New Hampshire. The mother went to telephone him. The mother then heard a rumor concerning the victim and the defendant, and she confronted the victim about it when she returned. At that point, the victim told her mother that she had been raped. The police arrived and the victim was transported to a hospital. There, the victim was examined by a physician and a sexual assault nurse examiner (SANE nurse).

The medical records of the victim's hospital care were admitted in evidence and submitted to the jury in the form of an exhibit. Before their admission, defense counsel attempted to impeach the victim with the SANE nurse's report of her interview and examination. The judge sustained the Commonwealth's objection that it was impermissible to impeach the victim with the statement of someone else. It was then suggested by defense counsel that the medical records themselves could be introduced in evidence. The judge noted that the records had not been subpoenaed in accord with the requirements of either G.L. c. 233, § 79, or G.L. c. 233, § 79G,2 but as "an act of discretion," she agreed to admit

456 Mass. 55

them at defense counsel's request in spite of this technical shortcoming.3 They were admitted in their entirety, without redaction.

921 N.E.2d 102

The medical records indicated that the victim told the SANE nurse that she had been raped vaginally but not orally.4 The records also revealed that there were no signs of physical trauma or other physical evidence of rape other than some tenderness of the victim's thighs. On one of the twenty-three pages of medical forms contained in the records, under the line "Clinical Impression," an examining physician wrote the words "Sexual Assault" without elaboration. Because the records were not redacted, the jury could have seen the treating physician's clinical impression, although this was neither pointed out nor argued by the prosecutor.

456 Mass. 56

The jury also could have read the summary of the victim's statement written by the SANE nurse that mentioned the defendant by name as one of the victim's assailants.

The theory of the defense was that the victim had fabricated her story to scuttle her mother's plan to send her to New Hampshire. In support of that theory, defense counsel elicited testimony from the victim that she did not want to go to New Hampshire and that she perceived her mother's decision as a punishment. Defense counsel also pointed out that the victim did not cry out for help despite the fact that the tent in which she claimed to have been raped was in the immediate vicinity of other campground residents' tents and campers, and that she did not seek assistance in any way until she was confronted by her mother. Additionally, defense counsel underscored, both on cross-examination and in closing argument, the dearth of evidence of physical trauma, and the inconsistencies between the lack of such evidence in the medical records and the victim's testimony that the rape lasted for over two hours. Finally, defense counsel emphasized that the victim's story had changed over time, that her medical records were not consistent with the story she had just told the jury, and that she had not mentioned the defendant forcing her to have oral sex with him until she was interviewed by the prosecutor in preparation for trial three years after the incident.5

We begin by addressing the defendant's conviction of aggravated rape, and then proceed to consider his claims of ineffective assistance of counsel.

Discussion. 1. Inconsistent verdicts. The defendant argues that his conviction of aggravated rape by reason of joint enterprise must be reversed because the jury simultaneously acquitted the sole other member of the joint enterprise. While his argument has the benefit of logic—how can one commit a joint enterprise alone?— the law of inconsistent verdicts is not so straightforward, and the "breed of `inconsistent' verdicts which is not allowed to

456 Mass. 57

stand under our cases is small indeed." Commonwealth v. Scott, 355 Mass. 471, 475, 245 N.E.2d 415 (1969).

"[T]he rule is well established in criminal cases that mere inconsistency in verdicts, one of which is an acquittal, will not render the verdict of guilty erroneous

921 N.E.2d 103

even though such inconsistency may have indicated the possibility of compromise on the part of the jury." Id. See United States v. Powell, 469 U.S. 57, 64-66, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984); Dunn v. United States, 284 U.S. 390, 393-394, 52 S.Ct. 189, 76 L.Ed. 356 (1932); Commonwealth v. Gonzalez, 452 Mass. 142, 150-152, 892 N.E.2d 255 (2008); Commonwealth v. Cerveny, 387 Mass. 280, 285-286, 439 N.E.2d 754 (1982). There are two principal reasons for this rule. The first is that each charge represents a separate indictment that may stand or fall on its own. See Dunn v. United States, supra at 393, 52 S.Ct. 189; Commonwealth v. Scott, supra. The second is our reluctance to subject a jury's verdicts to logical scrutiny: there are "any number of factors having nothing to do with the defendant's actual guilt" that can drive an acquittal. See Commonwealth v. Cerveny, supra at 285, 439 N.E.2d 754. For example, a not guilty verdict "may result from ... compassion or prejudice," yet the prosecution is "powerless to seek a judgment notwithstanding the verdict [of acquittal] or a new trial on the ground that the verdict is against the weight of the evidence." Id.

We have applied this rule in a wide variety of circumstances where an apparent inconsistency of verdicts has been argued as grounds for reversal. For example, we have declined to upset a conviction of armed robbery where the defendant was acquitted of carrying the shotgun that the evidence at trial suggested he carried during the robbery. See Commonwealth v. Hamilton, 411 Mass. 313, 323-324, 582 N.E.2d 929 (1991). Similarly, we have not required reversal where defendants are tried together for their alleged involvement in a single crime, and one is convicted and the other acquitted, see Commonwealth v. Connearney, 359 Mass. 200, 202-203, 268 N.E.2d 662 (1971); Commonwealth v. Clements, 51 Mass.App.Ct. 508, 523, 747 N.E.2d 682 (200...

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