Com. v. Medina
| Decision Date | 07 October 2005 |
| Docket Number | No. 04-P-1014.,04-P-1014. |
| Citation | 64 Mass. App. Ct. 708,835 N.E.2d 300 |
| Parties | COMMONWEALTH v. Jeffrey J. MEDINA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Janet H. Pumphrey for the defendant.
David W. Waterfall, Assistant District Attorney, for the Commonwealth.
Present: PERRETTA, CYPHER, & GRAHAM, JJ.
On November 14, 1997, a Worcester County grand jury returned eight indictments against the defendant, Jeffrey J. Medina, charging him with three counts of rape of a child (G.L. c. 265, § 23) and five counts of indecent assault and battery of a child under the age of fourteen (G.L. c. 265, § 13B), second and subsequent offense. The victim identified in the indictments was the defendant's stepdaughter. The indictments charged the defendant with committing the crimes on "diverse dates" between January 1, 1991, and April 12, 1993, while he and his stepdaughter were living in Worcester County.
Three days later, on November 17, 1997, another grand jury, in Franklin County, also returned indictments against the defendant, charging him with two counts of rape and two counts of indecent assault and battery of a child under the age of fourteen against the same victim, at different locations in that county.
On April 5, 1999, more than sixteen months after the indictments had issued, and just one day shy of a trial scheduled to begin in Worcester County, the defendant filed a motion in the Superior Court in Franklin County, seeking an order to transfer the pending Franklin County case to Worcester County, and to join and consolidate the cases for a single trial. See Mass.R.Crim.P. 9, 378 Mass. 859 (1979); Mass.R.Crim.P. 37, 378 Mass. 914 (1979). A judge denied the motion. The defendant's trial in Worcester County went forward the next day (April 6, 1999).
Trial proceedings. The defendant was tried before a jury in Worcester County, but a mistrial was declared on April 9, 1999, because of a jury deadlock.1 On April 14, 1999, trial commenced in Franklin County on the indictments that had issued in that county. A jury there acquitted the defendant on all charges.2
On May 19, 1999, the defendant was retried in Worcester County on the Worcester indictments. A jury convicted the defendant on all charges. Postverdict, a bench trial was held with the defendant's assent, at which the judge found that the assault and battery convictions were the defendant's second and subsequent offenses. The trial judge imposed a sentence of concurrent life terms for two of the rape convictions, and ordered a twenty-year term of probation for the other rape conviction. For each of the five indecent assault and battery convictions, the judge imposed concurrent sentences of twenty to thirty years, to be served from and after the expiration of the two concurrent life terms on the rape convictions.
The defendant moved for a new trial. See Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979). His claims of error were based on (a) double jeopardy and the denial of his request for a joint trial; (b) the judge's charge and certain evidentiary rulings; (c) ineffective assistance of counsel; (d) an alleged infringement of his right to be present at a critical trial stage; (e) the allegedly excessive punishment imposed for his convictions; and (f) a line of allegedly improper questioning by the prosecutor. The defendant also claimed that the judge's demeanor during defense counsel's closing argument prejudiced his case in the eyes of the jury.
At the request of the defendant, the trial judge recused herself from acting on his rule 30 motion. Another judge conducted an evidentiary hearing and, based upon detailed written findings, denied the rule 30 motion.
The defendant's appeal from the order denying him a new trial has been consolidated with his direct appeal. We affirm both the judgments of conviction and the denial of relief under rule 30.
1. Facts. The Commonwealth presented the following witnesses at the retrial in Worcester County: the victim, who was then nineteen years old3; her seventeen year old brother; her mother; her maternal grandmother; Russ Aukstikalnis, who boarded with the victim and her family; and Douglas Brown, a police officer in the town of Montague, who interviewed the victim and her brother after the abuse was reported.
The victim testified that the defendant, who was married to the victim's mother,4 began sexually abusing her when she lived with him, her mother, and her younger brother in an apartment on Washington Street in Gardner. There, the defendant touched her breasts and vagina with his hands, put his penis on her vagina,5 and touched her vagina with his tongue. At all times when these acts took place, in the living room or the bedroom that the defendant shared with the victim's mother, the mother was working. The defendant would make her go into his bedroom where "he would open [her] legs and lick [her] all over and kiss [her]." He warned the victim not to tell anyone about these events; otherwise, he said, "he would take [her] someplace where [she] couldn't tell anybody" and would "hurt" her. The victim also testified that the defendant would make her perform oral sex on him, explaining that he "would hold [her] head so [she] couldn't move and he'd pull [her] hair." The victim also recalled that prior to a contemplated family trip to Montana the defendant took her on a camp outing at which he "touched [her] with his hands on [her] breast and [her] vagina."
The defendant's abuse of the victim continued after the family moved to an apartment on Chestnut Street in Gardner. She stated that the defendant would take her into the bedroom and have vaginal sex with her. In addition, the defendant continued to force her to perform oral sex on him which, she said, happened "a lot."
Aukstikalnis testified he had witnessed the victim, while clad in her nightshirt, enter the defendant's bedroom late at night. He saw this happen more than once, and always when the mother was not at home.6 The victim's brother also testified he had observed the defendant, at the Chestnut Street apartment, touching the victim's vagina and her breasts with his penis. The brother also recalled seeing the defendant kneeling over the victim, with his penis on her vagina, while she lay naked on her back in the doorway area between the defendant's bedroom and the living room. The brother did not speak of this until 1997 because he was afraid of the defendant.
The abuse ended abruptly in 1992 when the victim's mother, upon returning home at about 1:30 A.M. from her job, discovered her daughter and the defendant in bed together. The victim appeared to be sleeping but the defendant was sitting upright, smoking a cigarette. The mother confronted him, angrily asking what had been going on. He did not answer. After removing her daughter from the bedroom, the mother had a sharp exchange with the defendant before going to sleep on a living room sofa.
The following day, the victim denied to her mother that anything happened with the defendant. Later, Aukstikalnis told the mother that he had observed the victim going into the defendant's bedroom at night. The mother then quit her job, removed her children from the Gardner home, and took up residence in a shelter.7
In November of 1996, after a Thanksgiving visit with her father and stepmother, the victim moved to Ohio to live with them. She attended school in Ohio, making the honor roll, and got along well with her new family. In April of 1997, the father told the victim that her mother was again living with the defendant. Shortly thereafter, the victim locked herself in her bedroom and broke some of her personal belongings, including a mirror. This led to an argument between the victim and her father; the victim hit her father and pushed her pregnant stepmother.
The police were summoned. Before they arrived, the victim told her father about her abuse by the defendant. She later appeared before a judge who directed her to attend counseling. The abuse was reported to authorities in the Commonwealth, and as a result, the defendant was indicted in both Franklin and Worcester counties for the crimes allegedly committed in each.
2. Double jeopardy. The defendant did not raise any claim based on double jeopardy prior to the retrial of the Worcester County case. Though the constitutional claim had been waived, see Commonwealth v. Spear, 43 Mass.App.Ct. 583, 587, 686 N.E.2d 1037 (1997),8 it was included in his new trial motion, and was addressed by the judge who acted on that motion. The judge determined that there was no merit to the defendant's double jeopardy claim. We agree.
The protection afforded by the Fifth Amendment to the United States Constitution, which prohibits the Federal government from subjecting a defendant to more than one prosecution for the same offense, is applicable to the States by way of the due process clause of the Fourteenth Amendment. See Commonwealth v. Woods, 414 Mass. 343, 346, 607 N.E.2d 1024 (1993); Commonwealth v. Ellis, 432 Mass. 746, 751, 739 N.E.2d 1107 (2000); Rendon-Alvarez v. Commonwealth, 437 Mass. 40, 40 n. 1, 768 N.E.2d 1081 (2002); Commonwealth v. Gonzalez, 437 Mass. 276, 281 n. 3, 771 N.E.2d 134 (2002), cert. denied, 538 U.S. 962, 123 S.Ct. 1748, 155 L.Ed.2d 514 (2003). Protection from double jeopardy is part of the statutory and common law in the Commonwealth.9 Commonwealth v. Woods, supra.
This fundamental idea, which "is deeply ingrained" in our system of jurisprudence, is that the government "with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v....
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