Com. v. Walker

• Decision Date: 24 May 2007
• Docket Number: No. 06-P-471.,06-P-471.
• Citation: 866 N.E.2d 958,69 Mass. App. Ct. 137
• Parties: COMMONWEALTH v. Darrell WALKER.
• Court: Appeals Court of Massachusetts

866 N.E.2d 958

69 Mass. App. Ct. 137

COMMONWEALTH v. Darrell WALKER.

No. 06-P-471.

Appeals Court of Massachusetts, Suffolk.

Argued January 18, 2007.

Decided May 24, 2007.

Edward J. DeAngelo for the defendant.

Amanda Lovell, Assistant District Attorney, for the Commonwealth.

Present: DUFFLY, CYPHER, & GRAINGER, JJ.

CYPHER, J.

A grand jury indicted the defendant, Darrell Walker, on two separate charges of rape, vaginal and oral, G.L. c. 265, § 22(b ); unarmed robbery, G.L. c. 265, § 19; assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A; and assault and battery, G.L. c. 265, § 13A. A jury found the defendant guilty of vaginal rape, assault and battery by means of a dangerous weapon, and assault and battery and acquitted him of the remaining charges. The defendant appeals from the convictions.

Factual background. A jury could have found the following facts.¹ At around 10:30 P.M. on January 26, 2001, Susan Brown² left her sister's apartment in the South Boston section of Boston to walk to a friend's home to get a cigarette. Three men she did not recognize walked toward her. One asked if she had a cigarette; she said she did not smoke, even though she actually did smoke, but just "wanted to go on [her] way." One of the men asked her if she wanted to smoke some marijuana, and she agreed. They walked to a nearby basement stairwell. Brown and two of the men went down the stairs while the other man stayed at the top. One of the men rolled the marijuana cigarette, and they introduced themselves to Brown.

The man at the top of the stairs, later identified through deoxyribonucleic acid (DNA) evidence as the defendant, yelled to Brown, "[C]ome here," and she complied. The defendant led Brown away from the other men. He told her that his name was Dennis, that he was from a neighborhood in another section of Boston, and that his aunt had an apartment in the area. They crossed the street. He opened a door and took her into a hallway. Brown began to feel nervous.

The defendant told Brown to be quiet. In an aggressive, angry voice he instructed her to "suck his dick." He grabbed her head and "pulled it down to his penis and forced his penis in [her] mouth." After some time, he told her to stop. Brown, frightened, asked him what he was going to do. He did not answer her. She went out of the door to the building, but the defendant punched her in the ear from behind. She was dazed and could not hear anything for a minute.

The defendant grabbed Brown's arm and pulled her back to the door, but they remained outside. He turned her to face the door and stood behind her. He pulled her pants down and stuck his penis in her vagina. It hurt.

When the defendant finished, he turned Brown around and told her to button her pants. He demanded forty dollars. She said she did not have it and attempted to show him that her pockets were empty. He punched her on the top of head, hard enough to daze her, punched her five or six more times, and then slammed her up against the wall, knocking her to the ground. He kicked her and stomped on her head. He was wearing work boots. Brown tried to block her face with her arms. He kicked her three or four times. She closed her eyes, feigning unconsciousness so that he would stop the attack. The defendant grabbed her purse and ran away.

Brown waited until she could no longer hear the defendant's footsteps. She ran from the area, covered with blood. She asked a man getting into a truck to take her to the hospital, but he refused. She ran to a store and asked the owner and employees to call an ambulance.

An ambulance took Brown to the Boston Medical Center, where a SANE³ nurse took swabs from Brown's mouth, vagina, and perineal area, and samples of her hair and blood. The nurse also photographed Brown's injuries. The nurse then put the samples in the rape kit and sealed the kit with police tape. Brown received medication and several injections to prevent pregnancy and sexually transmitted diseases. One of the injections was very painful.

Both of Brown's ears were injured, and one of her eardrums was perforated. She had a cut on the back of her head with a raised hematoma and a concussion. Her neck was sore, and her hands and arms up to her elbows were black and blue and swollen. Her face was swollen and cut. She also had tearing lacerations on the lowermost section of her vagina.

Brown was legally blind and needed to focus on whatever she was trying to see before she could see it accurately. Nevertheless, she was able to describe her attacker as a light skinned African-American, about twenty years old, six feet tall and of medium build, and around 180 pounds. The defendant was five feet, eleven inches tall, weighed 187 pounds, and was twenty years old several months after the attack. Brown also identified a pair of boots seized from the defendant as the same color and having the same type of laces and sole as those worn by the perpetrator. She did not identify the defendant at trial.

Forensic evidence. Christine Stevens, a senior criminalist at the Boston police crime laboratory, testified that the crime laboratory received the rape kit on February 5, 2001. Of the twenty-two swabs in the kit, ten had semen on them. A single vaginal swab containing semen was sent for DNA testing in the DNA section of the laboratory.

Julie Lynch, a senior criminalist from the DNA section of the Boston police department crime laboratory, testified about the DNA testing that was done on the vaginal swab. In the particular mixture that was tested, 99.99 percent of Caucasians, southeastern Hispanics, and African-Americans could be excluded as "possible contributors"; the defendant could not be excluded.

Discussion. 1. The defendant's statement to his mother. The defendant was arrested on a warrant for rape at the Middleborough police station on May 23, 2002. His mother accompanied him to the police station. The defendant claims that a statement he made when he was arrested should not have been admitted because his statement referred to a different incident. Specifically, upon hearing that her son was being arrested for rape, the defendant's mother asked him what was going on. The defendant replied, "You know how girls are when you break up with them." The defendant argues that he thought that the warrant pursuant to which he was being arrested did not pertain to the victim here; he claims that the statement was unrelated to the case.⁴

The defendant filed a motion in limine to prohibit the introduction of the statement and objected to its introduction at trial. At trial, defense counsel requested a voir dire of the Middleborough police officer who overheard the statement, to which the judge agreed. Detective Robert Lake of the Middleborough police department testified in the voir dire that on May 23, 2002, the defendant and his mother walked into the police station and the detective told him that there was a warrant for his arrest on the charge of rape. The detective neither knew nor told the defendant about any details of the underlying charge, including when or where the incident occurred, that the warrant was issued out of Boston, or who the complainant was. The judge denied the motion in limine. The judge indicated that the relevant inquiry was whether the defendant knew which rape underlay the warrant and that there was no evidence that he did. The judge's decision is overturned on appeal only for palpable error. Commonwealth v. Silva, 401 Mass. 318, 322, 516 N.E.2d 161 (1987).

The judge did not err in allowing the defendant's statement into evidence. In the case of Commonwealth v. Kruah, 47 Mass.App.Ct. 341, 344, 712 N.E.2d 1182 (1999), this court noted that "[e]quivocal statements by a criminal defendant are generally admitted in evidence." Ibid., quoting from Commonwealth v. Estep, 38 Mass.App.Ct. 502, 507 n. 1, 649 N.E.2d 775 (1995). Additionally, there was no error because if the warrant pertained to a set of different alleged facts, there was no indication that the defendant was aware of the specific allegation to which the warrant referred when he made the statement.

Moreover, even if the statement should not have been admitted, in light of the overwhelming evidence of guilt in the form of DNA evidence,⁵ we can say with fair assurance that the evidence had a limited effect on the jury. See Commonwealth v. Best, 50 Mass.App.Ct. 722, 725-726, 740 N.E.2d 1065 (2001). In the context of the case, it is likely that, as defense counsel argued in closing, the jury perceived that the statement "ha[d] nothing at all to do with this. It has to do with a young man and his mother and [his] trying to make her feel better as he's being arrested for something that there is no proof that he did." There was no error.

2. Peremptory challenges. The defendant claims that the prosecutor improperly struck four prospective jurors because they were African-American or Hispanic and that the judge erroneously did not inquire of the prosecutor to determine whether the prosecutor had a bona fide reason for the challenges. The judge did not inquire of the prosecutor, but the prosecutor volunteered her reasons for the first three challenges.

"Peremptory challenges are presumed to be proper, but that presumption may be rebutted on a showing that `(1) there is a pattern of excluding members of a discrete group and (2) it is likely that individuals are being excluded solely on the basis of their membership' in that group." Commonwealth v. Maldonado, 439 Mass. 460, 463, 788 N.E.2d 968 (2003), quoting from Commonwealth v. Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). If the judge finds that a prima facie showing of an improper use of peremptory challenges has been made, Commonwealth v. Maldonado, supra at 463, 788 N.E.2d 968, "the burden shifts to the party exercising the challenge to provide a `group-neutral' explanation for it." Ibid. "Implicit in the judge's response [declining to require the...