Commonwealth v. Butler

• Decision Date: 26 March 2020
• Docket Number: No. 19-P-352,19-P-352
• Citation: 97 Mass.App.Ct. 223,145 N.E.3d 186
• Court: Appeals Court of Massachusetts
• Parties: COMMONWEALTH v. Brian BUTLER.

97 Mass.App.Ct. 223

145 N.E.3d 186

COMMONWEALTH

v.Brian BUTLER.

No. 19-P-352

Appeals Court of Massachusetts, Essex..

Argued December 10, 2019.

Decided March 26, 2020.

Robert L. Sheketoff, Boston, for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

Present: Wolohojian, Agnes, & Neyman, JJ.

WOLOHOJIAN, J.

The primary issue in this appeal is whether the defendant, who was convicted of indecent assault and battery, G. L. c. 265, § 13H, was entitled to a mistake of fact as to consent instruction. Although the Supreme Judicial Court "hold[s] open the possibility that a mistake of fact instruction may be an appropriate and fair defense to charges of indecent assault and battery on a person age fourteen or older," Commonwealth v. Kennedy, 478 Mass. 804, 811, 90 N.E.3d 722 (2018), we conclude that the trial judge did not err in declining to instruct on the defense because any subjective belief the defendant may have held as to the victim's consent was, in the facts and circumstances here, objectively unreasonable as a matter of law.

Background. The defendant was a Salem police officer. When he reported to the police station shortly before 7 A.M. on November 1, 2016, the victim, whom we shall call James, was being held in protective custody. James, who was in his late twenties and lived on Cape Cod with his mother, had been brought to the station about three and one-half hours earlier, drunk and wearing nothing other than a pair of saturated jeans and some Halloween makeup.¹ Much of what subsequently occurred at the station was captured (both audio and video) by cameras located throughout the station. We have reviewed these recordings (videotapes); our narrative of the facts here includes not only the testimonial evidence at trial, but also what is shown and heard on the videotapes introduced at trial. The facts are largely undisputed.

During booking, James reported that he had drunk six shots of alcohol during the evening, that he suffered from anxiety, that he had previously been treated for depression and for a nervous breakdown, and that he had thought about taking his life the day before but that he was not thinking of killing himself at the moment. The booking officer told James that he would sleep at the station for a few hours and then be released. James was also told that he was not under arrest. After being allowed to place a call to his mother, James was placed in a cell with a cup of water and a roll of toilet paper. He was not given a blanket. At some point, James took off his wet jeans and tried to cover himself with the toilet paper.

Shortly after 5 A.M. , James, upset and apparently intoxicated, began banging on the door of his cell. He repeatedly shouted that he wanted "his phone call" and the word "now." He also made random reference to his father having voted for President Donald Trump. An officer tried to calm James by noting that he had already been allowed to call his mother. After asking why James had removed his pants, and noting that he was naked, the officer brought James a garment resembling a hospital gown, which he passed through a slot in the cell door. James subsequently fell asleep.

Shortly before 7 A.M. , the defendant looked into James's cell and asked him why he had made "a mess of" himself, why he had no clothes on, where he lived, and whether he was under arrest or in protective custody (which James could not remember). The defendant said that he would check on James's status. He then asked where James had obtained the hospital gown, and suggested that James begin picking up the toilet paper that was strewn around the cell. James described his condition at this point as "sick" and still "very, very drunk."

Almost exactly thirty minutes later,² the defendant (wearing his uniform) returned carrying a small trash can and let himself into James's cell -- despite the fact that it was against department policy for an officer to go into a cell without a second officer present. The defendant and James began to pick up the toilet paper, and after additional inquiry into James's situation, the defendant told James that he could leave the cell to call his mother. James stood up, holding the hospital gown to cover himself. The defendant turned to face James, put down the trash can, and took the hospital gown away. James attempted to cover his genitals with his hands and turned away from the defendant. In response, the defendant said, "No, it's all right. I've seen a prick before, trust me." James, scared, turned to face the defendant and moved his hands away from his genitals. The defendant then commented on James's penis, "Very nice, though. Uncut and everything, hunh. Good for you." James turned away from the defendant, who then gave the garment back to James and said, "All right, here, just wrap it around you then if you want, you can come out naked if you want to -- I'm just kidding." James wrapped himself in the gown and followed the defendant to the booking desk to call his mother.

The phone was located on the officer's side of the booking desk, which was approximately chest-high. The defendant went to the officer's side of the desk to dial the phone. Meanwhile, James stood up against the other side of the desk. After the defendant dialed the phone, he came out from behind the desk, stood a few feet from James, looked down at James's crotch, and said, "[V]ery nice." He continued to look at James until it was apparent that the phone call was not going to be answered. The defendant then returned behind the desk and hung up the phone. There followed a discussion about James's lack of clothes, and James asked for a blanket, which the defendant said he would get. The defendant came out from behind the desk and took the hospital gown away from James, again leaving him naked. James again covered his genitals with his hands, and the defendant commented, "It's okay, you don't have to cover up. My God." In apparent reference to James's penis the defendant said, "I do like that, though. That's good. You don't have to be that modest. I mean, my goodness." After the defendant gave James a blanket, the defendant placed his hand on James's hip above his right buttock and steered him back to his cell. Once James was back in the cell, the defendant again engaged him in conversation, asking how his jeans had become soaked. At the end of this conversation, the defendant took James's jeans away.

About forty-five minutes later, again in violation of department policy, the defendant returned to James's cell alone. The defendant told James that his mother had called and had provided James's sister's phone number. The defendant stated that he would allow James to call his sister, but James (whose relationship with his sister was strained given the events described in note 1, supra ) said that he would prefer to wait. The defendant then engaged James in a conversation about his tattoos during which the defendant moved close to James, and at one point touched James's forehead. When James asked to call his mother, the defendant led James back to the booking area.

The defendant dialed the phone and then handed it across the booking desk to James. James's mother did not answer, and James left only a short message. James then started to walk back to his cell, but the defendant called him back and asked whether he wanted to call his sister. James returned toward the desk and the defendant approached him, placed his hand on James's buttock, and then pressed his body against James as he (the defendant) dialed the phone. After dialing the number, the defendant put his arm around James's waist and again placed his left arm on James's buttock, where he let it rest.

What happened as James then spoke on the phone with his sister is at the heart of this appeal, and so we set out separately James's testimony on the point as well as what is shown on the videotape. James testified that the defendant "reached around, grabbed my penis and started massaging it and whispered in my ear ‘Is this okay?’ " James responded, "[Y]es" because he was terrified and thought that he "wasn't going to get out" if he did not do what the defendant wanted. James did not want the defendant to touch him, but he was afraid that if he did not allow the defendant to do so, he "was not going to have a good rest of the day," that the defendant could hurt him, and that a cry for help would be futile or result in his "getting beat up or charged on some trumped-up charges or kept in jail for no reason or worse, like raped."

The videotape shows the defendant moving his left arm from James's buttock and then running it around to the front of James's body. At this point, the defendant was standing side by side with James, and both men had their fronts facing the booking desk. After the defendant moved his left arm around to James's front, he asked, "Do you mind," to which James responded, "No." The defendant then said, "Can I go inside";³ James said, "[C]old"; and the defendant again said, "Can I go inside." During this short exchange, the defendant turned his body so that he could reach James's penis with his right hand rather than his left.⁴

The defendant then massaged James's penis for two minutes while James spoke with his sister, asking her to come to the station and to bring him some clothes. At no point did James move away from the defendant or physically resist. At the same time, James kept the blanket tightly wrapped around him and gave no physical sign of encouragement, invitation, or participation.

Once James finished speaking with his sister, the defendant told James to follow him to a broom closet (which was not under video surveillance) and fellated James after he said "yes." Two minutes later, a sound in the booking area caused the defendant to "freak out," and he quickly left the broom closet to investigate. Seeing nothing, he returned to the broom closet, referring to "finishing off" James. After about eight and...