Com. v. Simcock
| Decision Date | 26 September 1991 |
| Docket Number | No. 90-P-1198,90-P-1198 |
| Citation | 575 N.E.2d 1137,31 Mass.App.Ct. 184 |
| Parties | COMMONWEALTH v. Matthew SIMCOCK (and three companion cases). 1 |
| Court | Appeals Court of Massachusetts |
Yvonne P. Toyloy, Committee for Public Counsel Services, for Matthew Simcock.
Edward F. Sullivan, Jr., Dedham, for Patrick Simcock.
Frederick A. Busconi, Framingham, for Steven C. Beyer et al.
James F. Lang, Asst. Dist. Atty., for the Com.
Before DREBEN, FINE and GILLERMAN, JJ.
Each of the four defendants was charged in a separate indictment with aggravated rape, rape, and indecent assault and battery of the victim in her home in Millis on August 24, 1988. At the close of the evidence, the judge dismissed the rape and indecent assault and battery indictments but instructed the jury on their substance as lesser included offenses of aggravated rape. The jury found each of the four defendants guilty only of the lesser included offense of indecent assault and battery. On appeal the defendants contend that: (1) they were entitled to instructions on mistake as to the victim's consent; (2) it was error to instruct on the victim's possible incapacity to consent due to the combined effects of intoxication and an earlier head injury; (3) the indecent assault and battery verdicts should be set aside because there is no rational basis for them in the evidence; (4) the judge erred in excluding evidence of prior sexual incidents involving the victim; and (5) the defendants were wrongfully denied access to medical and psychological records concerning the victim. We affirm the convictions but, in accordance with Commonwealth v. Stockhammer, 409 Mass. 867, 882-883, 570 N.E.2d 992 (1991), order certain records to be made available to defense counsel and the prosecutor as a possible basis for motions for a new trial.
Facts. The relevant facts begin more than three years before the alleged assault when the victim was in an automobile accident. She suffered severe head injuries which resulted in a lengthy hospitalization and outpatient care. Her rehabilitation was gradual but marked by progress. In the spring of 1986, she returned to high school as a part-time student, followed by full-time enrollment the next fall, and graduation in 1988. That spring she ran in the Boston Marathon. At the time of trial in early 1990, she still suffered from some residual effects of the head injury. She spoke with a lisp, she had some continuing cognitive deficits causing her to be "slow," and her eyes worked independently of one another.
On the evening of August 24, 1988, the victim was home alone. She telephoned Michelle Simcock, an acquaintance from school. Michelle was not at home, but the victim spoke with Matthew Simcock, Michelle's brother, whom she had met once, and then with Richard Clegg, who was visiting Matthew and whom the victim had known most of her life. During the course of the conversation it was decided that Richard and Matthew would visit the victim. At about 8:00 P.M. they arrived, accompanied by Matthew's brother Patrick, a high school classmate of the victim. They decided to rent a movie. The victim selected "Dirty Dancing," a film she had seen several times.
Matthew and Richard had extended an invitation to Steven Beyer, also slightly known to the victim, and, shortly after the others had begun watching the film, Steven arrived with a case of beer. The victim knew that, because of her head injury, she had a heightened susceptibility to the effects of alcohol. She testified, however, that she drank one full beer and part of another. Three of the defendants testified 2 to varying amounts of alcohol consumed by the victim, ranging from two beers to three beers plus wine, vodka, and coffee brandy from her parents' liquor cabinet.
As to the events which followed, the victim's testimony differed significantly from that of the defendants. According to the victim, the beer caused her to become overheated. She went into her bedroom and changed into a pair of shorts and a tank top. As she was leaving the bedroom, Steven walked in, forced her onto the bed, removed her clothes and proceeded to have sexual intercourse with her, despite the fact that she protested "not yet," was crying, and asked him to "please stop." When Steven was finished, Patrick, Richard, and then Matthew each, in turn, entered the bedroom and forced her to have sexual intercourse. She was crying the entire time, but spoke only to Richard, to whom she asked "why" and protested "please stop." The victim testified that she had not consented to sexual intercourse with any of the defendants and that she had been afraid because earlier in the evening Matthew had been talking about beating someone's head in.
The three defendants who testified characterized the victim as an initiator and enthusiastic participant in oral and vaginal sex after dancing provocatively in the living room to the film's soundtrack. 3 Steven testified that the sexual encounters began when the victim entered the bedroom where he was making a phone call, took off her shirt, and asked if he was "ready." The testimony of the defendants was not entirely consistent, differing most notably in the descriptions of what transpired after each of them left the bedroom. For example, Patrick testified that, after he had sexual intercourse with the victim, he sent Richard into the bedroom at her request, but Richard testified that the victim came into the living room, wearing nothing, and led him into the bedroom. The defendants also differed as to whether the victim was angry or happy when they left.
The next day, the victim reported the incident to Betty Flaherty, at the time a family friend. 4 After meeting Ms. Flaherty again the following day, the victim spoke with her mother in Ms. Flaherty's presence. A visit to a rape crisis counselor and a doctor followed. 5 Several days later, the victim first spoke to the police.
At trial, the defense produced an expert, Dr. Paul Spiers, who testified that a possible effect of a head injury such as the victim's was lack of impulse control and sexually inappropriate behavior. He also noted that any such disinhibitive tendencies could be amplified by drinking alcohol. Referring to the victim's medical records, he noted that, beginning in January of 1986 and for a year thereafter, the victim had been taking Tegretol, a drug often prescribed to control inappropriate behavior in head injury patients. In rebuttal the Commonwealth produced Dr. Harris Funkenstein, who testified that the victim's injuries were probably not the kind which would produce disinhibition. On cross-examination, however, he stated that the victim's hospital records indicated that, while hospitalized, she had engaged in inappropriate behavior, for that reason treatment with Tegretol for three years was prescribed, and she had been taken off the drug after only one year.
1. Mistake of fact defense. The Commonwealth had the same burden of proving lack of the victim's consent for indecent assault and battery as it would have had for rape. The defendants complain of jury instructions on the issue of the defendants' state of mind as to the victim's consent. The judge was requested to instruct the jury that the Commonwealth had the burden of proving that sexual intercourse was committed without a reasonable and honest belief that the complaining witness freely consented to it. The judge declined to give the requested instruction. Instead, he told the jury: The defendants objected at the appropriate time to the failure to give the requested instruction and to the instruction actually given.
A requirement for an instruction based upon one's actual mistake as to consent without regard to its reasonableness in the circumstances would be difficult to justify. See Commonwealth v. Sherry, 386 Mass. 682, 697, 437 N.E.2d 224 (1982); Estrich, Rape, 95 Yale L.J. 1087, 1101-1104, 1182-1183 (1986). Contrast Regina v. Morgan, 1976 App.Cas. 182, 214 (). A requirement for an instruction based upon a reasonable and good faith but mistaken belief on the part of a defendant that the victim consented to sexual intercourse, however, would not be a surprising departure from established principles. Estrich, supra at 1104-1105. Such a requirement would comport with general common law principles that some form of mens rea must be proved before there may be a criminal conviction. Thus, an honest and reasonable mistake of fact may be a defense even if the offense charged requires proof of only a general intent. See Commonwealth v. Power, 7 Met. 596, 602 (1844); Commonwealth v. Presby, 14 Gray 65, 68-69 (1859); Perkins & Boyce, Criminal Law 1046 (3d ed. 1982). Such a requirement would also comport with general notions of fairness; ordinarily one should not be held blameworthy for a felony for acting in accordance with his honest and reasonable beliefs created by the circumstances. Commentators generally assume that one's honest and reasonable mistake as to consent may be a defense to rape, 6 and such a defense is widely recognized in other jurisdictions. 7 Trial judges in Massachusetts actually give such instructions with some frequency. See, e.g., Commonwealth v. Cordeiro, 401 Mass. 843, 849-850, 519 N.E.2d 1328 (1988); Commonwealth v. Crowe, 21 Mass.App.Ct. 456, 485, 488 N.E.2d 780 (1986). Compare Commonwealth v. Lefkowitz, 20 Mass.App.Ct. 513, 520-521 & n. 16, 481 N.E.2d 227 (1985).
In the present case there was a proper request for such an instruction,...
To continue reading
Request your trial
-
Com. v. Vasquez
...victim was impaired or unable to consent). Cf. Commonwealth v. Ascolillo, 405 Mass. at 464, 541 N.E.2d 570; Commonwealth v. Simcock, 31 Mass. App.Ct. 184, 195, 575 N.E.2d 1137 (1991) (discussing proper instruction on issue of consent in rape cases where victim was incapacitated in some way)......
-
Com. v. Gonzalez
...presented at trial. See Commonwealth v. Elliffe, 47 Mass.App.Ct. 580, 584, 714 N.E.2d 835 (1999); Commonwealth v. Simcock, 31 Mass.App.Ct. 184, 196-197, 575 N.E.2d 1137 (1991). A factually inconsistent verdict is distinct from the legally inconsistent verdict that arises when there exists n......
-
Commonwealth v. Butler
...645, 650-651, 464 N.E.2d 33 (1984) ; Commonwealth v. Sherry, 386 Mass. 682, 697, 437 N.E.2d 224 (1982) ; Commonwealth v. Simcock, 31 Mass. App. Ct. 184, 191-192, 575 N.E.2d 1137 (1991). Nonetheless, we begin with the premise that a mistake of fact as to consent defense may be available in c......
-
Commonwealth v. St. Louis
...as in a prosecution for rape.16 See Commonwealth v. LeBlanc, 456 Mass. 135, 138, 921 N.E.2d 933 (2010) ; Commonwealth v. Simcock, 31 Mass.App.Ct. 184, 188, 575 N.E.2d 1137 (1991). In this case, the Commonwealth presented sufficient evidence from which the jury could find that, in the totali......
-
§ 12.03 COMMON LAW RULES
...v. United States, 103 A.3d 199, 201 (D.C. 2014); People v. Mayberry, 542 P.2d 1337 (Cal. 1975).[20] . See Commonwealth v. Simcock, 575 N.E.2d 1137, 1141 (Mass. App. Ct. 1991).[21] . Notice the anomaly in the common law approach: If D's mistake was unreasonable, he is convicted of rape; if h......
-
§ 12.03 Common Law Rules
...Hawkins v. United States, 103 A.3d 199, 201 (D.C. 2014); People v. Mayberry, 542 P.2d 1337 (Cal. 1975).[20] See Commonwealth v. Simcock, 575 N.E.2d 1137, 1141 (Mass. App. Ct. 1991).[21] Notice the anomaly in the common law approach: If D's mistake was unreasonable, he is convicted of rape; ......
-
TABLE OF CASES
...v., 598 N.E.2d 673 (Mass. App. Ct. 1992), 132 Siering, State v., 644 A.2d 958 (Conn. App. Ct. 1994), 551 Simcock, Commonwealth v., 575 N.E.2d 1137 (Mass. App. Ct. 1991), 149 Simmons, Ex parte, 649 So. 2d 1282 (Ala. 1994), 451 Simon, State v., 646 P.2d 1119 (Kan. 1982), 213, 227 Simpson v. U......
-
When is strict criminal liability just?
...statutory rape and rape, in those jurisdictions requiring no culpability as to the woman's lack of consent. See Commonwealth v. Simcock, 575 N.E.2d 1137, 1142 (Mass. App. Ct. 1991); State v. Reed, 479 1291, 1296 (Me. 1984). In both instances, the defendant must engage in intentional interco......