Com. v. Wilcox

• Decision Date: 12 August 2008
• Docket Number: No. 07-P-738.,07-P-738.
• Citation: 891 N.E.2d 708,72 Mass. App. Ct. 344
• Parties: COMMONWEALTH v. Curtis WILCOX.
• Court: Appeals Court of Massachusetts

891 N.E.2d 708

72 Mass. App. Ct. 344

COMMONWEALTH v. Curtis WILCOX.

No. 07-P-738.

Appeals Court of Massachusetts, Suffolk.

Argued April 18, 2008.

Decided August 12, 2008.

Edward B. Fogarty, Springfield, for the defendant.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

Present: PERRETTA, MILLS, & RUBIN, JJ.

MILLS, J.

A jury found the defendant guilty of aggravated rape, G.L. c. 265, § 22(a); kidnapping, G.L. c. 265, § 26; and aggravated assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A(c).¹ On appeal, he claims that (1) the charge of kidnapping merged with the other charges and cannot be treated as a separate offense; (2) the prosecutor erroneously shifted the burden of proof to the defendant; (3) a statement by the victim was improperly admitted as an excited utterance; and (4) defense counsel was ineffective in his examination of the defendant on direct examination.

We summarize only those facts that are relevant to the issues raised on appeal as the jury might have found them.

On May 7, 2003, shortly after midnight, the victim was forced at knifepoint into an alley where she was stabbed four times while being raped by the defendant, whom she knew by the nickname "Black."² The victim and the defendant were not close friends, but knew each other through mutual acquaintances. Just prior to the attack, they had a brief conversation while meeting on the street. The victim expressed her happiness at seeing the defendant and asked where he had been since she had not seen him in a while. He told her that he had just gotten out of jail and she offered to give him some money, which he declined. The victim wrote her boyfriend's address and the telephone number on a slip of paper for the defendant, in case he needed anything in the future, and walked away.

Moments later, the victim felt an object pressed into her back and heard the defendant shout or say, "`go, go, go' as he pushed her what appears to have been a very short distance—a matter of some steps—into an alley that led from the street they were on to a parallel street."³ He ordered her to pull her pants down, then raped her, while stabbing her four times with a jagged-edged knife. The victim was able to see the defendant's face at some point during the attack and repeated his nickname, "Black." The defendant told the victim to "shut up." The victim testified that each time she said his name, he stabbed her again. The defendant then left the victim, who was bleeding profusely, and ran down the alley toward his home, which was close to the site of the attack. The victim, rapidly losing blood, ran into the street yelling for help, but none was forthcoming. When she remembered that she knew someone who lived nearby, she went there and banged on the door until the resident emerged and called 911.

The paramedics were called and arrived at 12:53 A.M. The victim at that time was soaked in blood and had full neck veins, which indicated that her injuries were interfering with blood flow. She was also in shock. She was treated at the scene and then transported to a hospital. An emergency room doctor asked the victim who had stabbed her, and she replied, "Black." A police officer who arrived at the hospital at around the same time asked the same question, to which the victim again replied, "Black." She was treated for stab wounds to her left shoulder, hip, and flank, and the center of her torso. She lost between one and one-half and two liters of blood, some of which had to be drained from her chest cavity. The victim was hospitalized for seven days and evidence was taken on the second day by a sexual assault nurse examiner.

In conversations with a detective prior to the trial, the defendant initially denied having had sex with anyone on May 6, 2003, or of ever having had sex with any woman in her forties.⁴ However, at trial, deoxyribonucleic acid (DNA) evidence was introduced linking the defendant to the victim.⁵ The defendant testified that he did have sex with the victim on May 6, 2003, but much earlier in the day, at approximately 6:00 P.M. He stated that the sex was consensual, in exchange for drugs, and that after having sex with the victim, he gave her a rock of "crack" cocaine.⁶ He stated that he did walk home from a friend's house between midnight and 1:00 A.M., but that he did not walk down the alley where the attack occurred, and he denied having raped or stabbed the victim.

Discussion. 1. Kidnapping and aggravated rape as separate offenses. The defendant claims that the forced movement of the victim at knifepoint into an alley, and her subsequent confinement there while being raped and stabbed, did not constitute a "seizure, detention or movement that is separate and apart from the underlying ... rape" and, therefore, does not support a separate kidnapping conviction.

We disagree. The judge, while acknowledging that the kidnapping was close "both in terms of time and space" to the rape, properly ruled that the kidnapping was not duplicative of the aggravated rape charge in the circumstances of this case. First, this is not a case in which kidnapping was necessarily a lesser included offense of aggravated rape because the kidnapping was the only aggravating factor alleged. Contrast Commonwealth v. Petrillo, 50 Mass.App.Ct. 104, 111, 735 N.E.2d 395 (2000), cert. denied, 532 U.S. 1030, 121 S.Ct. 1981, 149 L.Ed.2d 772 (2001). On the contrary, the jury here were presented with three separate aggravating factors— serious bodily injury, armed assault and battery, and kidnapping—and found all three to be proved beyond a reasonable doubt. In other words, two of the three bases of predicate aggravation were unrelated to kidnapping. See Commonwealth v. Dykens, 438 Mass. 827, 840-841, 784 N.E.2d 1107 (2003) (aggravated rape and kidnapping convictions were not duplicative where jury convicted defendant of aggravated rape based on two other aggravating factors in addition to kidnapping).

Second, the offenses of kidnapping and aggravated rape are not duplicative under the elements-based test of Morey v. Commonwealth, 108 Mass. 433, 434 (1871). Pursuant to this test, "[a]s long as each offense includes an element that the other does not, `neither crime is a lesser-included offense of the other, and convictions on both are deemed to have been authorized by the Legislature and hence not [duplicative].'" Commonwealth v. Jones, 441 Mass. 73, 75, 803 N.E.2d 319 (2004), quoting from Commonwealth v. Valliere, 437 Mass. 366, 371, 772 N.E.2d 27 (2002). Kidnapping, as charged in this case, is defined by statute as follows:

"Whoever, without lawful authority, forcibly or secretly confines another person within this commonwealth against [her] will ... shall be punished...."

G.L. c. 265, § 26, as amended, St.1998, c. 180, § 63. Aggravated rape is defined by statute as follows:

"Whoever has sexual intercourse or unnatural sexual intercourse with a person, and compels such person to submit by force and against [her] will, or compels such person to submit by threat of bodily injury and if either such sexual intercourse or unnatural sexual intercourse results in or is committed with acts resulting in serious bodily injury, or is committed by a joint enterprise, or is committed during the commission or attempted commission of an offense defined in [G.L. c. 265, § 26] ... shall be punished...."

G.L. c. 265, § 22(a), as appearing in St.1980, c. 459, § 6. Each of these crimes requires an element that the other does not: kidnapping, unlike aggravated rape, requires confinement, and aggravated rape, unlike kidnapping, requires sexual intercourse. Thus, the two charges are not duplicative under the Morey test.

Notwithstanding, the defendant claims that the two charges are nonetheless duplicative in the circumstances of this case under the "single act" test set out in Commonwealth v. Jones, 382 Mass. 387, 394, 416 N.E.2d 502 (1981), and cited in Commonwealth v. Rivera, 397 Mass. 244, 252-253, 490 N.E.2d 1160 (1986). For two reasons, however, this claim cannot succeed. First, the Legislature is authorized to establish separate penalties for offenses that might otherwise be duplicative. See Commonwealth v. Alvarez, 413 Mass. 224, 232, 596 N.E.2d 325 (1992). As the trial judge recognized, the Legislature has done just that regarding the offenses of kidnapping and aggravated rape. The third paragraph of G.L. c. 265, § 26, which was added to the statute in 1998, imposes a mandatory sentence of at least twenty-five years in prison for anyone who commits the offense of kidnapping and also sexually assaults his victim. The statute goes on to specify that, "[f]or the purposes of this paragraph, `sexual assault' shall mean the commission of any act set forth in [G.L. c. 265,] section[ ] ... twenty-two.... " As the judge noted, this provision was designed to require any person who both kidnaps and rapes his victim to serve the mandatory twenty-five year sentence, regardless whether the two crimes are based on the same conduct:

"[T]he `aggravated' portion of the general kidnapping statute at issue here, G.L. c. 265, § 26, third paragraph, specifically provides for a mandatory minimum sentence when acts of kidnapping and rape are combined—as well as when acts of kidnapping and causing serious bodily injury while armed with a dangerous weapon are combined. This legislative juxtaposition appears to support the view that the kidnapping and rape convictions should be considered separately and should not be merged, at least where, as here, the jury found bases for the aggravated rape conviction that were independent of the kidnapping conviction."

Thus, the defendant's claim must fail.

Furthermore, even assuming for the sake of argument that the "single act" standard is applicable, the kidnapping and aggravated rape charges in this case were not based on a single act. "Although the restraint that is an integral part of rape ... may be one with the rape...