Com. v. Wallace

• Decision Date: 04 March 2010
• Docket Number: No. 08-P-985.,08-P-985.
• Citation: 76 Mass. App. Ct. 411,922 N.E.2d 834
• Parties: COMMONWEALTH v. John WALLACE.
• Court: Appeals Court of Massachusetts

922 N.E.2d 834

76 Mass. App. Ct. 411

COMMONWEALTH v. John WALLACE.

No. 08-P-985.

Appeals Court of Massachusetts, Middlesex.

Argued November 9, 2009.

Decided March 4, 2010.

Eric Tennen, Boston (John G. Swomley with him) for the defendant.

Patrick G. Fitzgerald, Assistant District Attorney, for the Commonwealth.

Present: KAFKER, WOLOHOJIAN, & MILKEY, JJ.

MILKEY, J.

After a jury trial in Superior Court, the defendant was convicted of rape of a child, G.L. c. 265, § 23 (first indictment), and rape, G.L. c. 265, § 22(b) (second indictment). The two charges involved a single victim, to whom we shall refer as "Thomas" (a pseudonym). The first indictment was for the period before Thomas turned sixteen, and the second was for the period after. On the first indictment, the defendant was sentenced to from ten to twelve years in State prison, and on the second, he received ten years of probation from and after his prison sentence on the first offense. We affirm the convictions but remand for resentencing in light of an ambiguity presented by the judge's explanation of the sentence that she imposed.

Background. Based on the evidence, the jury could have found the following facts.

How the defendant met the victim. When Thomas was about ten years old, he began delivering newspapers in his neighborhood, including to the home of the defendant's mother. At the time, Thomas was about four feet, eleven inches in height and weighed approximately eighty or ninety pounds. After Thomas expressed an interest in motorcycles and dirt bikes to the defendant's mother, she introduced him to her son, who lived in a basement apartment in her house. The defendant, who was substantially older and bigger than Thomas,¹ always had motorcycles, dirt bikes, and exotic cars in his mother's back yard and garage. Thomas began visiting the defendant several times a week to watch him fix engines, to learn about motorcycles and dirt bikes and to watch television. They spent significant time together in the yard and garage, as well in the basement apartment. The defendant also took Thomas on various outings such as to a restaurant, to an auto parts store, and to a bike show. Thomas viewed the defendant as a friend and "like an uncle." The defendant in fact asked Thomas to call him "Uncle John."

The sexual assaults. The defendant began sexually assaulting Thomas when Thomas was "about" eleven years old. With the exception of an incident when the defendant got Thomas drunk on hard liquor (further details of which are described below), the assaults followed the same pattern. Often during their visits, Thomas would end up lying on the defendant's waterbed, either because the defendant had urged him to do so if he was tired, or as a result of the defendant's pushing him on to the bed while they were wrestling.² As part of their wrestling or otherwise, the defendant would sometimes "pin" Thomas down on the bed. The defendant would turn off the lights and television, lock the apartment door, and stick a pillow over Thomas's face. He would then remove Thomas's pants and fellate him.³ On occasions when Thomas had fallen asleep on the bed, he would wake to find himself being sexually assaulted.

Alcohol was a regular part of the pattern, with the defendant providing Thomas (who was at all times underage) with beers. During the assaults, the victim would remain motionless and mentally detach himself from what was occurring. He thought the assaults were his fault, and he feared the defendant, given his belief that the defendant was a police officer and had a bad temper.⁴

During this period, Thomas was experiencing great emotional distress. He was often angry, especially at himself, feeling that "everything was happening because [he] was causing it to happen." He would sometimes run away from home, and on one such occasion, Thomas's brother tracked him down to ask what was wrong. As the brother recounted in testimony discussed further below, Thomas confided that the defendant had "done something inappropriate sexually" on multiple occasions at the defendant's home.

In the first few years, the sexual assaults would occur "probably two, three times a month." After he turned sixteen, Thomas would still visit the defendant's home, although less frequently. Approximately once a month, the defendant continued to fellate him. Thomas did not do anything to stop it because he was "scared" and "didn't want anything to happen to [him]," and also because he thought the defendant was his friend and that "things were happening because they were [his] fault."

The sexual assaults ceased after an incident when Thomas was "about eighteen." Specifically, when the defendant started massaging Thomas's shoulders, Thomas physically pushed the defendant away and verbally expressed his displeasure at the advance. Thomas reported the abuse to the police approximately nine years later, and he saw the defendant in the interim only once or twice.

Discussion. Rape of a child. A conviction of rape of a child, more commonly known as "statutory rape," does not require proof that force was used or consent withheld. See G.L. c. 265, § 23; Commonwealth v. Miller, 385 Mass. 521, 522, 432 N.E.2d 463 (1982) (discussing the elements of statutory rape). In the face of strong evidence that the defendant sexually assaulted Thomas on numerous occasions before he turned sixteen, the defendant raises just two limited arguments with regard to the charge of rape of a child. Both arguments fail.

1. First complaint witness. Although the Commonwealth's case was based almost entirely on Thomas's testimony, the Commonwealth did call a number of other witnesses. One of those witnesses was Thomas's brother, who provided the testimony noted above as a "first complaint" witness. See Commonwealth v. King, 445 Mass. 217, 218-219, 834 N.E.2d 1175 (2005) ("the recipient of a complainant's first complaint of an alleged sexual assault may testify about the fact of the first complaint and the circumstances surrounding the making of that first complaint"). The defendant argues that the brother should not have been allowed to testify as a first complaint witness because what Thomas told his brother did not rise to the level of a "complaint." In support of this argument, the defendant highlights Thomas's own recollection of the conversation. In fact, when initially interviewed by the police, Thomas could not remember the conversation with his brother at all. Later, he remembered merely having "hinted around" the issue in the encounter, and that he "never came out and told [his brother] straight out this is what's happening" but told the brother only that "bad things" had occurred.

The trial judge did not abuse her discretion in allowing Thomas's brother to testify as a first complaint witness. Because the brother remembers Thomas stating that the defendant had engaged in inappropriate sex with him, those statements did rise to the level of a complaint. Compare Commonwealth v. Murungu, 450 Mass. 441, 446, 879 N.E.2d 99 (2008) (a conversation does not constitute a "complaint" for purposes of the first complaint rule "when, for example, the victim expresses to that person unhappiness, upset or other such feelings, but does not actually state that she has been sexually assaulted"). The fact that Thomas remembered the conversation somewhat differently goes to the weight of the evidence, not to its admissibility. The inconsistent recollections of the conversation provided fodder for cross-examination, and defense counsel did not miss the opportunity to exploit it. In the end, having had the opportunity to observe Thomas on the stand over two days, the jury plainly found his testimony sufficiently credible to convict the defendant.⁵

2. The incident at the home of the defendant's friend. There was one occasion when the defendant sexually assaulted Thomas after getting him drunk on hard liquor. Thomas was sufficiently intoxicated that he legally could not have provided his consent.⁶ The evidence was inconclusive about whether Thomas had turned sixteen at the time.⁷ This doubt posed a strategic conundrum for the parties. The younger that Thomas was at the time, the worse the defendant's behavior. However, any evidence that Thomas was too drunk to give his consent was legally irrelevant prior to Thomas's turning sixteen. If, on the other hand, the incident took place after Thomas's sixteenth birthday, then the evidence concerning Thomas's intoxication provided strong evidence that the defendant raped Thomas after he turned sixteen. After reviewing the issue over a weekend, defense counsel requested that the judge instruct the jury that they could consider the incident only with respect to the first indictment (rape of a child). The judge gave the limiting instruction the defendant requested, and the defendant now claims that this worked a miscarriage of justice by taking the "when did it happen" issue out of the hands of the jury.

Given that any error here was of the defendant's own making, there is doubt that he can even raise it. Commonwealth v. Knight, 37 Mass.App.Ct. 92, 99-100 & n. 2, 637 N.E.2d 240 (1994) (questioning whether "the issue is reviewable at all" when "the challenged instruction was given at the specific request of defense counsel at trial"). In any event, we conclude that the limiting instruction did not create a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967). First, the evidence that Thomas had not yet turned sixteen when the incident occurred was, if anything, more robust, so the judge's limiting instruction was not inconsistent with the weight of the evidence. Second, the evidence of other sexual acts taking place before Thomas turned sixteen was strong. The testimony regarding the additional incident was therefore merely cumulative.

Rape. In order to convict one of raping another, the Commonwealth must prove that the defendant "...