Com. v. Sherry

• Decision Date: 01 July 1982
• Citation: 437 N.E.2d 224,386 Mass. 682
• Parties: COMMONWEALTH v. Eugene SHERRY (and eight companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 224

437 N.E.2d 224

386 Mass. 682

COMMONWEALTH v. Eugene SHERRY (and eight companion cases ¹).

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued March 4, 1982.

Decided July 1, 1982.

Patricia A. O'Neill, Boston, for Eugene Sherry.

Kenneth M. Goldberg, Boston, for Arif Hussain.

Joseph J. Balliro, Boston (Juliane Balliro, Boston, with him), for Alan Lefkowitz.

Michael J. Traft, Asst. Dist. Atty. (Kathleen Coffey, Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and LIACOS, ABRAMS, NOLAN and O'CONNOR, JJ.

LIACOS, Justice.

Each defendant was indicted on three charges of aggravated rape (G.L. c. 265, § 22) and one charge of kidnapping (G.L. c. 265, § 26). A jury acquitted the defendants of kidnapping and convicted them of so much of each of the remaining three indictments as charged the lesser included offense of rape without aggravation. Each defendant was sentenced on each conviction to be imprisoned at the Massachusetts Correctional Institution, Walpole, for a term of not more than five years nor less than three years. Six months of the sentence was to be served, with the balance of the sentence to be suspended. On completion of the sentence served, each defendant was to be placed on probation for the term of one year. The sentences on the second and third convictions of each defendant were to be served concurrently with the first sentence. The trial judge ordered a stay of execution of sentence, pending appeal. The defendants appeal from their convictions and from the denial of their posttrial motions to set aside the verdicts and to enter findings of not guilty. Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979). We transferred the appeals here on our own motion. We now affirm each of the defendants' convictions on one charge of rape and vacate each defendant's convictions on the other two charges of rape.

The defendants contend that the trial judge erred (1) by denying their motions for a required finding of not guilty; (2) by denying their motions for a mistrial alleging prosecutorial misconduct; (3) by admitting hearsay evidence of the victim's fresh complaint and refusing to admit other hearsay statements of the victim; and (4) in instructing the jury on the lesser included offense of unaggravated rape and refusing to instruct the jury according to the defendants' requests. The defendants also contend that the jury verdicts were impossible as a matter of law, so that a new trial must be granted or the verdicts set aside. We consider each of these claims of error.

There was evidence of the following facts. The victim, a registered nurse, and the defendants, all doctors, were employed at the same hospital in Boston. The defendant Sherry, whom the victim knew professionally, with another doctor was a host at a party in Boston for some of the hospital staff on the evening of September 5, 1980. The victim was not acquainted with the defendants Hussain and Lefkowitz prior to this evening.

According to the victim's testimony, she had a conversation with Hussain at the party, during which he made sexual advances toward her. Later in the evening, Hussain and Sherry pushed her and Lefkowitz into a bathroom together, shut the door, and turned off the light. They did not open the door until Lefkowitz asked them to leave her in peace. ² At various times, the victim had danced with both Hussain and Sherry.

Some time later, as the victim was walking from one room to the next, Hussain and Sherry grabbed her by the arms and pulled her out of the apartment as Lefkowitz said, "We're going to go up to Rockport." The victim verbally protested but did not physically resist the men because she said she thought that they were just "horsing around" and that they would eventually leave her alone. ³ She further testified that once outside, Hussain carried her over his shoulder to Sherry's car and held her in the front seat as the four drove to Rockport. En route, she engaged in superficial conversation with the defendants. She testified that she was not in fear at this time. When they arrived at Lefkowitz's home in Rockport, she asked to be taken home. Instead, Hussain carried her into the house.

Once in the house, the victim and two of the men smoked some marihuana, and all of them toured the house. Lefkowitz invited them into a bedroom to view an antique bureau, and, once inside, the three men began to disrobe. The victim was frightened. She verbally protested, but the three men proceeded to undress her and maneuver her onto the bed. One of the defendants attempted to have the victim perform fellatio while another attempted intercourse. She told them to stop. At the suggestion of one of the defendants, two of the defendants left the room temporarily. Each defendant separately had intercourse with the victim in the bedroom. The victim testified that she felt physically numbed and could not fight; she felt humiliated and disgusted. After this sequence of events, the victim claimed that she was further sexually harassed and forced to take a bath.

Some time later, Lefkowitz told the victim that they were returning to Boston because Hussain was on call at the hospital. On their way back, the group stopped to view a beach, to eat breakfast, and to get gasoline. The victim was taken back to where she had left her car the prior evening, and she then drove herself to an apartment that she was sharing with another woman.

The defendants testified to a similar sequence of events, although the details of the episode varied significantly. According to their testimony, Lefkowitz invited Sherry to accompany him from the party to a home that his parents owned in Rockport. The victim was present when this invitation was extended and inquired as to whether she could go along. As the three were leaving, Sherry extended an invitation to Hussain. At no time on the way out of the apartment, in the elevator, lobby, or parking lot did the victim indicate her unwillingness to accompany the defendants.

Upon arrival in Rockport, the victim wandered into the bedroom where she inquired about the antique bureau. She sat down on the bed and kicked off her shoes, whereupon Sherry entered the room, dressed only in his underwear. Sherry helped the victim get undressed, and she proceeded to have intercourse with all three men separately and in turn. Each defendant testified that the victim consented to the acts of intercourse.

Motions for a required finding of not guilty. At the close of the Commonwealth's case, the defendants moved for a required finding of not guilty on each of the indictments. Mass.R.Crim.P. 25, 378 Mass. 896 (1979). The defendants argued that there was no evidence of force or threat of bodily injury, a required element of the crime of rape. The defendants also argued that aggravating circumstances, i.e., kidnapping or rape by joint enterprise, had not been proved. The judge denied their motions.

The defendants contend that, at the close of the Commonwealth's case, see Commonwealth v. Wilborne, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 59, 62, 415 N.E.2d 192, the evidence was insufficient to persuade a rational trier of fact of each of the elements of the crime charged beyond a reasonable doubt. We consider whether the evidence, in the light most favorable to the Commonwealth "is sufficient to permit the jury to infer the existence of the essential elements of the crime charged; and, whether the evidence and the inferences permitted to be drawn therefrom are sufficient to bring minds of ordinary intelligence and sagacity to the persuasion of guilt beyond a reasonable doubt." Commonwealth v. Casale, 381 Mass. 167, ---, Mass.Adv.Sh. (1980) 1711, 1712, 408 N.E.2d 841. The defendants may prevail on this claim of error only if we are convinced that no "rational trier of fact could have found the essential elements of [rape] beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 393 N.E.2d 671 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

The essence of the crime of rape, whether aggravated or unaggravated, is sexual intercourse with another compelled by force and against the victim's will or compelled by threat of bodily injury. See G.L. c. 265, §§ 22(a ) & (b ). At the close of the Commonwealth's case, the evidence viewed in the light most favorable to the Commonwealth established the following. The victim was forcibly taken from a party by the three defendants and told that she would accompany them to Rockport. Despite her verbal protestations, the victim was carried into an automobile and restrained from leaving until the automobile was well on its way. Notwithstanding her requests to be allowed to go home, the victim was carried again and taken into a house. The three defendants undressed and began to undress the victim and to sexually attack her in unison over her verbal protestations. Once they had overpowered her, each in turn had intercourse with her while the others waited nearby in another room.

The evidence was sufficient to permit the jury to find that the defendants had sexual intercourse with the victim by force and against her will. The victim is not required to use physical force to resist; any resistance is enough when it demonstrates that her lack of consent is "honest and real." Commonwealth v. McDonald, 110 Mass. 405, 406 (1872). The jury could well consider the entire sequence of events and acts of all three defendants as it affected the victim's ability to resist. Commonwealth v. Therrien, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 1108, 1118, 420 N.E.2d 897. Commonwealth v. Chapman, 8 Mass.App. 260, 262, 392 N.E.2d 1213 (1979). Cf. Commonwealth v. Burke, 105 Mass. 376 (1870). There was no error in the denial of the defendants' motions.

Motions for a mistrial. The defense called as a witness one Barbara Gariepy, the victim's nursing supervisor at the hospital. On cross-examination of...