Com. v. Sanchez

• Decision Date: 11 July 1989
• Citation: 540 N.E.2d 1316,405 Mass. 369
• Parties: COMMONWEALTH v. Asuncion SANCHEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1316

540 N.E.2d 1316

405 Mass. 369

COMMONWEALTH v. Asuncion SANCHEZ.

Supreme Judicial Court of Massachusetts Hampden.

Argued March 7, 1989.

Decided July 11, 1989.

Michael J. Traft, Boston, for defendant.

Elizabeth R. Dunphy, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and O'CONNOR, JJ.

ABRAMS, Justice.

The defendant, Asuncion Sanchez, was convicted of rape of a child by force (four convictions), indecent assault and battery on a child under fourteen (two convictions), and indecent assault and battery (one conviction). See note 8, infra. The defendant appeals, alleging that his trial violated the principles of double jeopardy, that the prosecutor's summation was improper, that the judge erred in his evidentiary rulings, that the sentences constitute cruel and unusual punishment within the meaning of the Eighth Amendment to the United States Constitution and cruel or unusual punishment under art. 26 of the Declaration of Rights of the Massachusetts Constitution, that his convictions for some of the crimes are duplicative and therefore violate principles of double jeopardy, and that he was denied the effective assistance of counsel. We transferred the cases to this court on our own motion. We affirm the defendant's convictions for rape of a child by force. However, we also conclude that the defendant's convictions of indecent assault and battery impermissibly duplicate his convictions of rape of a child by force and must be dismissed. We therefore reverse the defendant's three convictions of indecent assault and battery.

We summarize the evidence in the light most favorable to the Commonwealth. The defendant, a vacuum cleaner salesman, knew three minor boys whom we shall call Alberto, Benjamin, and Christopher. ¹ The boys were friendly with each other. Benjamin and Christopher are cousins; Christopher's mother lived with the defendant's brother. One Saturday early in April, 1985, the defendant invited Alberto to come with him to sell a vacuum cleaner. The defendant spent some time with Alberto making unsuccessful sales calls, watching television at the home of the defendant's cousin, and eating at a McDonald's restaurant. The defendant arrived at his apartment together with Alberto, and invited Alberto into his bedroom to fill out a job application for the vacuum cleaner company. Alberto sat on the defendant's bed, holding a job application in his lap. The defendant sat beside Alberto on the bed and twice tried to unzip Alberto's pants. The first time Alberto became scared and walked into the bathroom. The second time Alberto went to get a drink of water. When Alberto returned, the defendant put his hand down Alberto's pants, removed Alberto's pants and underwear, and turned Alberto over on his stomach. The defendant spit on his finger and placed the finger in Alberto's rectum. After some time, the defendant spit on his own penis and inserted it into Alberto's rectum. Afterward, the defendant drove Alberto to a street near Alberto's house. The defendant warned Alberto not to say anything about what had happened.

In the middle of April, the defendant met Benjamin at Christopher's house. The defendant invited Benjamin to go to the store, and Benjamin agreed. On the way, the defendant said he had forgotten something at his apartment. On their arrival at the defendant's apartment, the defendant pushed Benjamin into the bedroom and onto the bed. He removed Benjamin's pants and touched Benjamin's penis. The defendant turned Benjamin over and placed his penis into Benjamin's rectum. Afterwards, the defendant offered Benjamin five dollars, but Benjamin refused and ran home.

On another day in April, the defendant met Christopher and invited him to go to the store. As they were driving away from the store, the defendant claimed he had forgotten something at his apartment. The defendant and Christopher went to the apartment, and the defendant told Christopher that he wanted to show him something in the bedroom. They went into the bedroom and the defendant pushed Christopher onto the bed. Christopher struggled vigorously with the defendant as he tried to hold Christopher down and undo his pants. Eventually, the defendant pulled Christopher's pants down and placed his penis into Christopher's rectum. Christopher then pushed the defendant off and ran out. The defendant followed in his car, caught up with Christopher, and warned him not to tell anyone what the defendant had done.

Until April 27, 1985, Alberto and Benjamin did not tell anyone, including one another, that they had been raped. On that day, the defendant came to Alberto's home to speak to Alberto's mother. When the defendant arrived, Alberto acted strangely, ran upstairs and locked himself in his room. Later that day, Alberto came up to his mother. He hugged her and started to cry. He described the details of the rape to his mother. Alberto and his parents went to see their parish priest, and later went to the police. The next day, Alberto's mother was crying because of what had happened to her son. Benjamin, a friend of the family, saw her crying. Although Alberto's mother refused to explain to Benjamin why she was crying, Alberto himself told Benjamin the reason. Benjamin then told Alberto that the defendant had raped him also. Alberto's mother took both boys to the police station, and also went to Christopher's house to pick up Christopher and his mother. Alberto's mother took all three boys to the hospital for tests. Alberto and Benjamin had contracted rectal gonorrhea. Christopher had not.

The defendant was arrested after Alberto gave his statement describing the rape to the police. While the defendant was in jail, medical tests showed that he was not suffering from gonorrhea. His medical record also indicated that the defendant stated that he had been taking penicillin. Penicillin is used to cure gonorrhea. The defendant testified and denied the charges.

1. Double jeopardy. The defendant's first trial ended when the judge granted the defendant's motion for a mistrial. The defendant argues on appeal that the second trial violated his right to be free from double jeopardy. ² We do not agree.

At the defendant's first trial, the Commonwealth called as its first witness, Dr. Barbara Stechenberg, an expert who testified about urethral and rectal gonorrhea. Defense counsel began his cross-examination of Dr. Stechenberg, but could not complete it that day due to the judge's schedule. The next day, the prosecutor informed the judge that the witness was unavailable because of her schedule. The prosecutor moved for a mistrial. The judge denied the prosecutor's motion in order to explore various courses of action with defense counsel and the defendant. Afterwards, defense counsel conferred at length with the defendant, exploring the various possibilities.

Defense counsel discussed with the defendant the possibility of going forward with the trial until the witness returned, suspending the trial until the witness returned, or moving for a mistrial. Defense counsel recommended a mistrial as the least oppressive choice, and the defendant agreed. When counsel returned to court to move for the mistrial, the judge asked him to make sure the defendant knew that the trial could go forward with the testimony of all other witnesses until Dr. Stechenberg returned. Defense counsel went back to the defendant and explained the judge's suggestion. He also informed the defendant that he would "essentially, by moving for the mistrial under these circumstances, be waiving your right to claim double jeopardy. You couldn't claim double jeopardy then." The defendant then moved for a mistrial, and the judge allowed his motion.

"Usually a mistrial granted upon the defendant's request does not present a bar to retrial on double jeopardy grounds.... However, when] a defendant's motion ... for a mistrial based upon 'prosecutorial misconduct' is allowed, the double jeopardy clause may be a bar to further prosecution." Commonwealth v. Lam Hue To, 391 Mass. 301, 310-311, 461 N.E.2d 776 (1984). See Commonwealth v. Andrews, 403 Mass. 441, 447-448, 530 N.E.2d 1222 (1988), quoting Oregon v. Kennedy, 456 U.S. 667, 682-683, 102 S.Ct. 2083, 2092-2093, 72 L.Ed.2d 416 (1982) (Stevens, J., concurring). The defendant has the burden of showing that prosecutorial misconduct induced him to move for a mistrial. Commonwealth v. Andrews, supra at 448, 530 N.E.2d 1222. The record does not support a claim that the prosecutor's behavior at the first trial met the level of prosecutorial misconduct needed to invoke Federal and State constitutional protections. See Oregon v. Kennedy, supra 456 U.S. at 683, 102 S.Ct. at 2093; Commonwealth v. Andrews, supra. The defendant also does not argue that his second trial was prejudiced by any infirmity in his first trial. See id. 403 Mass. at 446, 530 N.E.2d 1222.

The defendant asserts, however, that the principles of double jeopardy bar his retrial because he was not informed by his counsel or by the judge of every possible option available to him to avoid a mistrial. Specifically, he complains that no one informed him that the trial could go forward and that Dr. Stechenberg's testimony would be struck if she did not return by the close of the Commonwealth's case. The defendant analogizes to cases where the mistrial is granted over the defendant's objection and argues that the "failure to consider available alternatives before declaring a mistrial" may result in dismissal of the charges against him on double jeopardy grounds. See, e.g., Jones v. Commonwealth, 379 Mass. 607, 612, 400 N.E.2d 242 (1980). There is no support for the proposition that the failure of defense counsel and the judge to think of all possible choices before the defendant moves for a mistrial bars a retrial. Further, the same considerations advanced by defense counsel in favor of a motion for a mistrial (fear that the jury would consider Dr....