Com. v. Molle

• Citation: 779 N.E.2d 658,56 Mass. App. Ct. 621
• Decision Date: 04 December 2002
• Docket Number: No. 99-P-1623.,99-P-1623.
• Parties: COMMONWEALTH v. Patrick MOLLE.<SMALL><SUP>1</SUP></SMALL>
• Court: Appeals Court of Massachusetts

779 N.E.2d 658

56 Mass. App. Ct. 621

COMMONWEALTH v. Patrick MOLLE.¹

No. 99-P-1623.

Appeals Court of Massachusetts, Middlesex.

Argued October 12, 2001.

Decided December 4, 2002.

COPYRIGHT MATERIAL OMITTED

William S. Smith, Boston, for the defendant.

Jessica L. Langsam, Assistant District Attorney, for the Commonwealth.

Present: ARMSTRONG, C.J., PERRETTA, GREENBERG, MASON, & DOERFER, JJ.

MASON, J.

Following a jury trial in Superior Court, the defendant, Patrick Molle, was convicted of rape (G.L. c. 265, § 22[b]); indecent assault and battery on a person fourteen or older (G.L. c. 265, § 13H); and assault and battery (G.L. c. 265, § 13A).² On appeal, the defendant claims that (1) the judge improperly instructed the jury to consider the victim's intoxication in assessing her ability to consent; (2) the prosecutor made several improper statements during his closing argument; and (3) the judge admitted fresh complaint evidence that exceeded the scope of corroboration for the victim's testimony. We affirm the convictions.

The trial. The Commonwealth introduced the following evidence at trial. On August 5, 1997, the victim and her longtime friend and roommate, Paul Andrews, had a cookout at their apartment in Everett. Following the cookout, the victim left the apartment and drove around Everett for about an hour. At about 9:45 P.M., she pulled into the parking lot of Conrad's, a local pub. Once inside, the victim sat at the bar and ordered a beer. Fifteen or twenty minutes later, the defendant and his friend, who was initially introduced to the victim as "Jim" but later identified to her as Ralph, approached the victim and struck up a conversation. The victim thought that the defendant appeared to be "polite, clean cut," and in general, "fine, a nice person."

Early in the conversation, the defendant gave the victim his business card, and the discussion turned to the victim's line of work. The victim stated that she was a home health aide working with elderly patients. The defendant replied that he had a sick, elderly mother at home with whom he could use some assistance. Their talk then moved to other subjects. About an hour later, the defendant invited the victim to join him at a nearby club named the Chalet, and the victim agreed to do so. By the time she left Conrad's, the victim had consumed approximately two beers and a shot of hard liquor. She testified that she felt no effects from this alcohol.

At the Chalet, the defendant went to speak with some women at the opposite end of the bar for ten or fifteen minutes. Meanwhile, the victim drank a glass of water and danced with "Jim." Thereafter, the victim ordered another beer, paying for it herself, and a shot of hard liquor. At about 12:30 or 12:45 A. M., the defendant returned to the topic of his mother and ultimately requested that the victim accompany him to his apartment to help him attend to his mother. The victim agreed to do so.

As the victim left the Chalet, the defendant insisted that "Jim" drive the victim's car to the defendant's apartment because the victim had consumed "a couple of drinks." The victim testified that, although she did not feel under the influence of alcohol, the defendant's persistence caused her to go along with this idea. After the two cars were parked behind the defendant's apartment building, "Jim" handed the keys to the victim's car to the defendant and left. The victim followed the defendant into the building.

Upon entering the defendant's apartment, the victim was surprised to discover that it consisted of a single room and that there was an unmade bed directly in front of her. There was no sign of the defendant's mother. Upon making these discoveries, the victim told the defendant that she wanted to leave. The defendant, however, became angry and pushed her onto the bed.

According to the victim's testimony, a struggle ensued during which the defendant called her a "tease," a "bitch," and a "whore." She testified that she kicked the defendant and he bit her on the neck. During the commotion, the defendant managed to put his hands under her shirt and touch her breasts. He then unzipped her pants, pushed them and her underwear down to her knees, and inserted his fingers into her vagina. The victim testified that she attempted to resist the defendant's actions, but was largely unsuccessful because the defendant was restraining her.

After the defendant had inserted his fingers into the victim's vagina, she was able to kick and push him onto the floor, at which point she leapt from the bed. She pulled up her pants and located her sneakers, one of which had fallen off during the struggle. She then grabbed her keys and purse and immediately fled the apartment. The defendant did not follow her out.

The victim went to her car and drove home. When she arrived at her apartment around 3:30 A.M., she immediately took a shower and went into the living room, where she found Andrews asleep on the couch. As the victim sat at the foot of the couch and cried, Andrews awoke and tried to console her. Andrews testified that, while the victim appeared very upset, she did not appear to be under the influence of alcohol, and he did not smell alcohol on her breath. After a brief and broken conversation, the victim called the police.

Officers Tracy Lacey and Bernard Aspell responded to the call and arrived at the victim's apartment at about 4:30 A.M. The victim spoke with the officers for approximately fifteen minutes before leaving the apartment with them. The victim was shaking and sobbing. On cross-examination, Officer Lacey testified that when she and Officer Aspell responded to the victim's call in the early morning of August 6, she detected "a little smell of liquor on [the victim's] breath." Officer Lacey further testified, however, that in her opinion the victim was not having any difficulty in walking or communicating and was not drunk. Officer Aspell also testified that the victim "had some alcohol on her breath," but that "[s]he didn't appear drunk."

With Officer Aspell in one car and the victim and Officer Lacey in another, the three headed for the defendant's residence. Two other police officers, Detective Charles Marchese and Lieutenant John Flammia, met them in front of the defendant's building. The male officers then went to the apartment identified by the victim, and the defendant answered the door. When informed of the reason for the police presence at his apartment, the defendant insisted that they were mistaken since he had stayed inside all evening and had "witnesses" to that effect. Detective Marchese then brought the victim to view the defendant, and the victim identified the defendant as her assailant. Officer Aspell and Detective Marchese testified that the victim was visibly upset when she saw the defendant and that she backed against a wall, became extremely nervous, and shook.

The officers then brought the victim to the police station where she was further interviewed by Detective Marchese. During this interview, the victim was crying, disheveled, and upset. The victim told Detective Marchese that she had gone back to the defendant's apartment to visit his ill mother and then, when she had asked to leave, the defendant had grabbed her and thrown her onto the bed. The victim further stated that, after touching her breast, the defendant had pulled down her pants and "stuck his fingers inside me." She also stated that, throughout the encounter, she was yelling, crying, and trying to fight off the defendant. Detective Marchese observed and photographed a red mark on the victim's neck. He also observed scratches on the victim's hand.

The defendant was arrested and given Miranda warnings. Following his arrest, the defendant again stated to Detective Marchese that he had remained in his apartment all evening and had "witnesses to it."

The next day, August 7, 1999, Officer Lacey met with the victim at her home. During this meeting, Officer Lacey observed that the victim had "bruising and marks continuously on her legs and arms as well as her neck." The bruises included "hand marks, like bruising" on her inner thigh. Officer Lacey took additional photographs of these injuries.

The defendant did not present any evidence at trial. His primary defense at trial was that the victim had actively solicited or participated in whatever incident had occurred, and his trial strategy was to raise doubts about the credibility of the victim.

1. Unwarranted instruction. The judge's instructions on rape contained the language drawn from G.L. c. 265, § 22(b), that required the jury to determine whether the sexual intercourse was accomplished "by force or by threat of bodily injury and against the victim's will." The judge then went on to instruct the jury that the lack of evidence of struggle or outcry by the victim or lack of evidence of force by the defendant did not mean that there was consent for intercourse because, in certain circumstances, physical resistance may not be possible. The judge then stated:

"If the victim is restrained from exercising her will due to fear, to alcohol, or other causes, there can be no consent. The victim is not required to use physical force to resist. Any resistance is enough when it demonstrates that the victim's lack of consent is honest and real."

The defendant claims that the judge erred in instructing the jury that there could be no consent if the victim was restrained from exercising her will due to alcohol because there was no evidence that the victim was intoxicated or under the influence of alcohol at the time of the incident. The defendant further claims that, even though the instruction was not objected to, it gave rise to a substantial risk of a miscarriage of justice requiring reversal because it "created an alternative theory of guilt, namely that simply because there was evidence that [the victim] had consumed alcoholic drinks, the jury could find that as a matter of law s...