Com. v. Thomas

Citation511 N.E.2d 1095,400 Mass. 676
PartiesCOMMONWEALTH v. Milton THOMAS (and five companion cases 1 ).
Decision Date12 August 1987
CourtUnited States State Supreme Judicial Court of Massachusetts

Douglas C. Marshall (Willie Davis, Boston, with him), for defendants.

Elin H. Graydon, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

After a jury trial in the Superior Court, the defendants were convicted of aggravated rape, indecent assault and battery, and kidnapping. They appeal, arguing that: (1) the judge erred in instructing the jury on the defendants' decision not to testify, on lesser included offenses to the charge of rape, and on fresh complaint evidence; (2) the prosecutor's statements in opening and closing arguments prejudiced their rights to a fair trial; and (3) the judge erred in denying the defendants' motion to dismiss the indictments because of the delay in preparing trial transcripts. We transferred the cases to this court on our own motion.

On Saturday, September 4, 1982, the victim, then eighteen years old, was met as she left work in Portsmouth, New Hampshire, by two friends and the defendants, Milton Thomas and Michael Moore. The victim recognized Milton Thomas, who lived near her, but she had not previously seen Michael Moore. At the urging of her friends, the victim joined the group in Thomas's automobile, intending to drive to a party at a friend's house in Lynn, Massachusetts.

The group drove first to a park in Dover, New Hampshire, where they drank rum and beer, and everyone but the victim ingested cocaine. After leaving the park, the group drove toward Lynn. On the way, they stopped at a gas station, where they smoked some marihuana. When they got back into the car, the victim sat in the back seat on the driver's side. Milton Thomas sat next to her, and the others sat in the front seat, with Michael Moore driving. During the ride to Lynn, Thomas began touching the victim, rubbing her breasts and crotch through her clothes, and saying, "Come on, baby." The victim told him to "cut it out," but he persisted.

When they arrived in Lynn, the victim's two friends got out of the car. The victim testified that she attempted to get out of the car, but the door would not open, and Thomas restrained her. The defendants said something about going to get more beer, and drove off, with the victim still in the back seat with Thomas. The victim testified that she struggled to get away, and screamed for help.

As Moore drove, Thomas sexually assaulted the victim in the back seat. Despite the victim's struggling, Thomas touched her breasts, pulled her pants and underwear part way down, penetrated her vagina with his finger, and made her put her mouth to his penis. At one point while she was struggling with Thomas, Moore, who was driving, turned around and punched her twice in the face.

Moore stopped the car, and he and Thomas changed places, forcing the victim to remain in the back seat. Moore then assaulted the victim physically and sexually. He pulled her hair and struck her repeatedly, and raped her orally, vaginally, and anally. Finally, the victim persuaded the defendants to let her out of the car to relieve herself. When she got out, she ran to a nearby apartment house.

1. The defendants argue that the judge erred in failing to instruct the jury, sua sponte, that fresh complaint evidence was not admissible on the kidnapping charge. We reject the defendants' argument. Not only did the judge properly instruct the jury in his charge that fresh complaint evidence was admissible only on the indictments for aggravated rape and indecent assault and battery, and not for any purpose on the indictment for kidnapping, he also had so instructed the jury repeatedly during trial. There was no error.

2. Thomas's attorney submitted a request for an instruction on Thomas's decision not to testify at trial, and specifically requested that the judge refrain from referring to Thomas's "refusal" or "neglect" to testify. The judge denied Thomas's request, and instructed the jury using the language of G.L. c. 233, § 20 (1986 ed.). 2 Thomas's attorney renewed his objection after the jury were instructed. 3 Thomas argues that the judge's instruction was erroneous because of the negative connotations associated with references to a defendant's "failure," "neglect," and "refusal" to testify.

"No aspect of the charge to the jury requires more care and precise expression than that used with reference to the right of a defendant in a criminal case to remain silent and not be compelled to incriminate himself, as provided in art. 12 of the Declaration of Rights of the Massachusetts Constitution and the Fifth Amendment to the Constitution of the United States. Even an unintended suggestion that might induce the jury to draw an unfavorable inference is error." Commonwealth v. Sneed, 376 Mass. 867, 871, 383 N.E.2d 843 (1978), citing Commonwealth v. Maloney, 113 Mass. 211, 214 (1873), and Commonwealth v. Harlow, 110 Mass. 411, 412 (1872). See Commonwealth v. Charles, 397 Mass. 1, 9, 489 N.E.2d 679 (1986) (use of phrase "self-incrimination"); Commonwealth v. Costello, 392 Mass. 393, 400-401, 467 N.E.2d 811 (1984) (same). A judge must give such an instruction if a defendant requests one, and it is also "reversible error if a judge instructs a jury concerning a defendant's right not to testify when the defendant has requested that no such instruction be given." Commonwealth v. Buiel, 391 Mass. 744, 746, 463 N.E.2d 1172 (1984). That right does not entitle a defendant to specify the precise language of the judge's instruction, but the defendant Thomas's request was a reasonable one, and within the spirit of our discussion in relevant cases. Cf. Commonwealth v. McGowan, ante 400 Mass. 385, 391 n. 6, 510 N.E.2d 239 (1987); Commonwealth v. Charles, supra; Commonwealth v. Costello, supra at 401, 467 N.E.2d 811. The better course would have been to accede to the defendant's request. However, the judge carefully phrased his instructions explaining the statutory terms, avoiding any language carrying adverse connotations. Reading the judge's language in its entirety, we conclude that there was no reversible error.

3. The defendant Moore's attorney submitted a request for a jury instruction on the indictment for indecent assault and battery which stated in part that the Commonwealth was required to prove "[t]hat in taking indecent liberties, there was no intent to commit the crime of rape." Moore's counsel explained his concern that "if an indecent assault and battery is with the intent to commit rape, then I think it's part and parcel of the rape charge as opposed to a separate charge." The judge denied the request.

In his charge to the jury on the aggravated rape indictments, the judge instructed that the jury could find the defendants guilty of the lesser included offenses of rape and assault and battery. The judge instructed separately on the indictments for indecent assault and battery, with no lesser included offenses. At no time did the judge instruct the jury that, to find the defendants guilty of both aggravated rape and indecent assault and battery, they must base those convictions on separate, distinct acts, and may not find the defendants guilty of both offenses based on the same incident or acts. The defendant Thomas's counsel objected after the judge's instructions, requesting that the judge instruct the jury that "any activity that is used to prove the indecent assault and battery must be separate and apart from the activity that is directed toward the rape." The judge refused to give the requested instruction.

After the jury returned the verdicts finding the defendants guilty of aggravated rape, indecent assault and battery, and kidnapping, Thomas's attorney submitted a motion for a required finding of not guilty, or, in the alternative, for a new trial. He argued that the convictions for aggravated rape and for indecent assault and battery were both based on the same acts, and thus were duplicitous convictions. The judge denied the motion, stating, "I agree with you. But assault and battery is a lesser included offense of rape and aggravated rape. I do not see indecent assault and battery as a lesser included offense of rape or aggravated rape and for that reason, sir, I am denying your motion and your rights are saved." 4

A defendant may be convicted of two offenses for the same act "if each statute requires proof of an additional fact which the other does not." Kuklis v. Commonwealth, 361 Mass. 302, 306, 280 N.E.2d 155 (1972), quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871). That requirement has not been met in this case. We have stated that a defendant may be convicted of assault and battery on an indictment charging rape. Commonwealth v. Gilmore, 399 Mass. 741, 746-747, 506 N.E.2d 883 (1987), citing Commonwealth v. Richmond, 379 Mass. 557, 562, 399 N.E.2d 1069 (1980). "It follows that, because indecent assault and battery is merely an aggravated form of simple assault and battery, and the element of indecency necessarily inheres in the concept of rape, indecent assault and battery is likewise a lesser included offense of rape." Commonwealth v. Egerton, 396 Mass. 499, 503 n. 3, 487 N.E.2d 481 (1986). See Commonwealth v. Perretti, 20 Mass.App.Ct. 36, 42-43, 477 N.E.2d 1061 (1985).

The Commonwealth argues that convictions on both offenses were permissible because the facts would support a finding by the jury that the acts constituting aggravated rape were distinct from those acts constituting indecent assault and battery. Therefore, the Commonwealth reasons, the defendants have not been subjected to duplicitous punishment for the same act, but instead have been punished for separate crimes. We need not consider whether the evidence would support a finding of two separate incidents in this case, because the judge did not...

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  • Com. v. Gagnon
    • United States
    • Appeals Court of Massachusetts
    • January 24, 1995
    ...77-2670 dismissed as duplicative. See Kuklis v. Commonwealth, 361 Mass. 302, 309, 280 N.E.2d 155 (1972); Commonwealth v. Thomas, 400 Mass. 676, 682, 511 N.E.2d 1095 (1987), and cases 5. Erroneous sentencing on assault with intent to murder. Although indictment 77-2669 charged Gagnon with ar......
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