Com. v. Whitehead

• Citation: 379 Mass. 640,400 N.E.2d 821
• Parties: COMMONWEALTH v. Denise WHITEHEAD (and three companion cases 1 ).
• Decision Date: 30 January 1980
• Court: United States State Supreme Judicial Court of Massachusetts

Page 821

400 N.E.2d 821

379 Mass. 640

COMMONWEALTH v. Denise WHITEHEAD (and three companion cases ¹).

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Oct. 3, 1979.

Decided Jan. 30, 1980.

Martin S. Cosgrove, Quincy, for Denise Whitehead.

Nancy Gertner, Boston, for Mary Connolly.

Charles J. Hely, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and LIACOS, JJ.

KAPLAN, Justice.

The defendants Denise Whitehead and Mary Connolly were each indicted for rape, armed robbery, armed assault with intent to murder, and assault and battery by means of a dangerous weapon. Upon joint trial, they were convicted of rape, unarmed robbery (the judge having directed verdicts of not guilty on the balance of the robbery indictments), and assault and battery (as lesser included offenses on the indictments for the aggravated assaults). The assault and battery convictions of each were placed on file by consent. These are appeals pursuant to G.L. c. 278, §§ 33A-33G, from the two main convictions of each defendant on which concurrent life sentences were imposed, and from the denial of each defendant's motion for a new trial. Numerous errors are claimed. We conclude that the convictions should stand. Also we find no legal error in the sentences challenged by one of the defendants. (Of course the terms of the sentences are subject to review in the usual course by the Appellate Division of the Superior Court.)

A. Narrative. Principal witnesses for the prosecution were Carl McQuade and Miss M. (the victim); in addition the prosecution offered the substance of a joint interview of the defendants by Quincy police officers, and related testimony. The defendants testified on their own behalf. From all the proofs the jury could have found the following. Sometime on Friday afternoon, October 14, 1977, the victim, aged eighteen, travelled from the Roslindale apartment she occupied with her father to their former apartment on Beacon Street, Boston. After retrieving some letters that had arrived there, she started walking in the direction of the "Combat Zone". She was carrying about $60, a red pocket knife, and an identification card. Happening to meet John James, with whom she was slightly acquainted, she went with him to a lounge on Tremont Street. This was sometime after dark.

She was introduced at the lounge to Gary Moody, Carl McQuade, and the two defendants. The four were known to each other; the defendants were lovers. The defendant Connolly had met James previously; only James had known the victim. The victim spent most of the evening playing pool with McQuade, Moody, and Whitehead. Apparently there was heavy drinking by Moody and considerable by McQuade and Connolly. At some point during the evening James told the defendants that the victim had $300 and "we could go partying."

When the lounge closed around 2 A.M., the group of six left together. Marihuana was wanting. Whitehead fetched her car, and the rest got in. Whitehead was driving, Connolly in the front passenger seat, the three men in the back section with the victim. The car stopped at a place on Hemenway Street where Whitehead thought they might buy marihuana. Whitehead asked for money and James handed her $10 which the victim gave him voluntarily. Whitehead entered the building but returned a few minutes later without the goods. In lieu of the drug, Connolly shared with the others a six-pack of beer she had in the car.

Now the car proceeded to a gas station near Brookline Village. Whitehead bought gas with the $10 earlier contributed by the victim. The defendants got out of the car to go to the washroom; on their return they said they saw the victim playing with McQuade's and Moody's penises and kissing James. Connolly had heard McQuade and Moody telling the victim they wanted intercourse with her, and on returning to the car the defendants found Moody saying he had won a bet when playing pool with the victim and wanted to collect the sex he had earned. He asked Whitehead to drive to a good place and Whitehead chose Franklin Park.

On the way violence broke out in the back seat. Connolly heard the victim being struck by one or two of the men. At Franklin Park, McQuade and Moody left the car with the victim; they returned shortly when a car nearby disturbed their plan. By this time the victim's pants were off. As they left the park, McQuade was sitting in the front seat and Connolly was on the console which separated that seat from the driver's.

As the car proceeded to Columbia Point, the victim was beaten again. Refusing McQuade's demand for intercourse, she was forced to commit fellatio on him. Then she was stripped by the men of her remaining clothes. McQuade or James pushed the struggling victim onto Moody who forced intercourse on her. In the process the victim was struck on the face and was given her shirt to use as a compress against her bleeding nose.

At Columbia Point the car stopped and McQuade left to relieve himself. At this point, apparently, Whitehead watched Moody have another round of forced intercourse with the victim. Naked, the victim was passed by Moody and James to the front seat where the defendants in turn committed cunnilingus on her. The defendants then passed the victim back to the men.

McQuade returned to the front passenger seat. As the car departed Columbia Point, Moody demanded the victim's money. She said she had none. Connolly reached back from her perch on the console and said, "Where's your money, bitch?" and "Give up the money." Moody punched the victim in the face. Connolly took or was passed $38 from the pocket of the victim's pants and at Whitehead's suggestion she put the money on the dashboard. Moody continued to talk money James had promised $300 at the lounge but then demanded fellatio and the victim complied.

Whitehead was driving without a set destination, but as the car became overheated she began to look for an all-night gas station. She knew one in Quincy and headed the car there. At some point she stopped at an all-night diner and left the car to ask directions. The victim was pushed to the floor in the back of the car by Moody, McQuade, and James and held in that position. Moody said he "had to get rid of her." At this time, too, Connolly said, "Shut up, bitch, I'll kill you." Whitehead, returning, added, "She knows us. You have to kill the lousy white trash." The car then headed toward the gas station but was diverted when McQuade spotted the entrance to Mount Wollaston cemetery. Whitehead drove in and stopped at Moody's request.

Moody and McQuade were wielding knives and Moody said, "I have to get rid of her." Whitehead: "Get her out of the car." Moody and McQuade dragged the victim into the cemetery behind the car. McQuade kicked the victim to the ground and Moody, using the victim's red pocket knife, slit her throat. Meanwhile James used the victim's clothes to try to wipe her blood from the interior of the car, then tossed them out the window. Connolly saw that Moody's shirt was covered with blood when he and McQuade returned to the car, and she exclaimed, "My God, what did you do?", and Moody said he had stabbed the victim in the throat. He told them all to shut up and not to talk of the incident.

As Whitehead turned the car around to leave, Moody told Whitehead to stop. Moody left the car with McQuade. Approaching the victim lying on the ground, they kicked her "numerous" times with the others watching. They returned to the car. Moody repeated threateningly that all should keep quiet. They stopped at a gas station, and there was an effort to wipe off more of the blood with paper towels. Marihuana not previously disclosed was produced and used.

Whitehead drove back to Boston dropping Moody and McQuade on Beacon Hill and James on Cambridge Street. The time was now after 3:30 A.M. Whitehead with Connolly drove to Brockton.

Somehow the victim survived the attack in the cemetery and stumbled to a house nearby and was found by the occupant. She was taken to Quincy Hospital and released some five and a half weeks later.

B. Main Contentions. 1. Composition of the jury. Whitehead seeks to invalidate the entire trial as to herself by invoking the principle of our recent decision of COMMONWEALTH V. SOARES, --- MASS. ---, 387 N.E.2D 499 (1979)^A, which speaking generally proscribes the use of peremptory challenges to exclude prospective jurors solely by reason of their sex, race, color, creed, or national origin. Whitehead points out that her codefendant Connolly used ten of her fourteen peremptories to exclude eight women and two men (whereas Whitehead struck six men and the Commonwealth three men). In the end, the jury with alternates, as sworn, consisted of fourteen men. The present record on appeal is missing many data potentially relevant on such a claim for example, the number and composition of the venire but we are content to make the assumption for the present purpose that Connolly used her challenges in such a way that, under the Soares principle, the prosecution could properly have objected at the time of jury selection; for Soares teaches that the vice may be attacked as well by the Commonwealth when the defense offends, as by the defense when the Commonwealth is at fault. ID. AT --- N. 35, 387 N.E.2D 499^B.

Whitehead's argument, however, is quite inapposite. Soares does indeed state that its rule "applies . . . to the defendants in all cases pending on direct appeal (on March 8, 1979, the date of the decision) where the record is adequate to raise the issue." ID. AT --- N. 38, 387 N.E.2D AT 518.^C The present case was on direct appeal at the time, but it would be a perverse misuse of the doctrine to apply it to throw over Whitehead's trial. Connolly could not and does not claim she was tried by an unconstitutional jury because (according to the assumption) she was responsible for its skewed membership and sought thereby a strategic...