Commonwealth v. Carey

• Decision Date: 26 May 2011
• Docket Number: No. 09–P–1832.,09–P–1832.
• Citation: 947 N.E.2d 1124,79 Mass.App.Ct. 587
• Parties: COMMONWEALTHv.John CAREY.
• Court: Appeals Court of Massachusetts

79 Mass.App.Ct. 587

947 N.E.2d 1124

COMMONWEALTH

v.John CAREY.

No. 09–P–1832.

Appeals Court of Massachusetts, Essex.

Argued Dec. 1, 2010.Decided May 26, 2011.

James L. Sultan, Boston, for the defendant.Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.Present: MILLS, GRAINGER, & FECTEAU, JJ.FECTEAU, J.

The defendant, John Carey, appeals from his convictions of armed home invasion, assault and battery (two of three counts), and attempting to murder the victim by strangulation.¹ He contends, pursuant to the holding of Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), that the judge committed constitutional error by refusing to provide an instruction that the jury consider whether the alleged attack was part of consensual sexual activity, which, if found, mandated his acquittal on the charge of attempted murder by strangulation. He also complains of the prejudicial admission in evidence of sexual and violent images and related material taken from his computer. We affirm.

Background. The following facts were developed at trial. In the spring of 2007, the fifty-five year old victim lived in Hamilton with her twelve year old son. She and her husband were separated, with her husband living in an apartment in Arlington; they were in the process of reconciling. The defendant lived in Braintree with his girlfriend. His ex-wife lived in Hamilton, one street over from the victim's house, and was a friend of the victim. The defendant and the victim's husband were acquainted through their common interest in golf, and the defendant had assisted the victim's husband with projects at the victim's home.

On June 6, 2007, about 9:40 p.m., the victim was in the kitchen, working on her son's school project, when she heard a knock on the sliding glass door separating the “kitchen area” from a rear deck. Thinking it was her husband, who had just left to return to his apartment, she walked toward the door; recognizing the defendant, whom she knew as her friend's ex-husband and her husband's golf acquaintance, she opened it. The defendant entered and asked where her husband was.² The victim, who had returned to the kitchen, said that he was not there; the defendant then responded aggressively, “Why would he invite me over for a drink if he's not here?” Not knowing the answer, and frightened by his tone, she suggested they call her husband, but the defendant declined. According to her, the defendant looked “awful, ... drunk, ... and scary,” and his breath smelled of alcohol and his eyes were red. His speech was responsive and intelligible, however, and he seemed to have no problem walking. Wanting the defendant to leave, she told him she had to finish a project, walked to the sliding glass door, and opened it for him to leave. He did not leave; instead, facing the victim, he took a necktie that he had brought with him, put it around her neck, and began to pull the ends. The victim managed to get her hands between the tie and her throat. The defendant continued to pull the “noose” tightly around her neck and kicked her legs. She moved backwards as they struggled and knocked over a heavy chair. Thinking that she was going to die, she fell to the floor, with the defendant continuing to pull “harder and harder.”

As she lapsed into unconsciousness, she heard her son run downstairs. He had been changing his clothes in his second-floor bedroom and ran down when he heard screaming, someone saying “help,” and the crashing of furniture. When he reached the first floor, he saw the defendant choking his mother with his hands crossed and near her neck, and holding and pulling something. His mother was on the ground, screaming, and trying to get away from the defendant. When her son yelled, “What are you doing?” the victim told him to get a knife and stab the defendant. He got a knife from the kitchen, and stabbed the defendant in the back; the blade broke and fell to the floor. He then dropped the knife handle, grabbed the defendant, and tried to punch and pull him away from his mother.

The defendant continued to strangle the victim and, at some point, he released his choke hold and ran after the son, but returned to the victim when he saw that she had regained her footing. He then punched her in the forehead and mouth. Still screaming, she ran out the sliding glass door to the back yard, followed by the defendant and her son. Once outside, the victim ran to the home of neighbors to one side and her son ran to other neighbors. The defendant got into his car (parked in her driveway) and drove off.

The victim sustained wounds to her forehead and above one eye, and displayed red abrasion marks on her neck that became more pronounced over time. ³ Her hands were also red and swollen. She realized at the neighbor's home that she had soiled herself during the attack.

The neighbor called the Hamilton police a minute or two after the victim arrived and, at 9:50 p.m., Officer Arthur Hatfield was dispatched. In the victim's home, the officer noticed signs of a struggle, including a tipped-over chair, a knife blade on the floor, a rug out of place, what appeared to be urine on a sandal, and a wall telephone receiver hanging off the hook.

Later, Hatfield and other members of the Hamilton police department conducted further investigation at the victim's home, and found, among other evidence, a piece of a necktie on a step leading up to the deck behind the house. The victim had never seen the remnant, which was of the “thin portion” of a man's tie, almost thirty inches long, cut on one end and with a rip in the center. A deoxyribonucleic acid (DNA) analyst testified that hairs found on the tie matched the victim, and that “handler DNA” on the tie was a mixture from at least three people, including the victim and the defendant but excluding the victim's husband and son. Prior to the attack, the victim had never had any problems with the defendant nor an intimate relationship with him.

As part of their investigation, State police conducted a forensic examination of the defendant's computer. State police Sergeant Thomas Neff found “400 or more” photographs “that were strangulation-oriented or had strangulation themes.” Of these, eight were offered and received in evidence.⁴

Sergeant Neff also searched the defendant's computer for the term “asphyxia,” and found 978 “hits” and forty-seven files. One of the searches resulted in a link to an article, accessed by the defendant, about a man suspected in a “ligature strangulation” murder whose previous convictions of four strangulation murders twenty years earlier had been reversed on appeal. Sergeant Neff also located “remnants” of ten or so other articles and Web sites involving strangulation.

Lastly, the sergeant found a ninety-second video “clip” in the “my documents” folder on the defendant's computer. The clip was played for the jury. In it, a man strangles a naked woman until she appears to have died.

Discussion. 1. Consensual sexual activity as a defense. The defendant testified, and his counsel argued, that the defendant's intent was not to kill the victim but to have sex with her, that his interest in sexual asphyxiation did not mean that he wanted to kill her, and that the events on the evening in question, including their “asphyxiation activities,” were consensual. According to the defendant, they had engaged in similar activity on two prior occasions. He contends, therefore, that the judge should have instructed the jury that consent was a defense to the charges of armed home invasion and assault and battery by means of a dangerous weapon. The defendant neither requested such an instruction nor objected when the judge did not so instruct, both during the main portion of his instructions and in answer to specific jury questions. As the case on which the defendant relies, Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), does not overrule existing Massachusetts precedent that consent is not a defense to harmful conduct, we hold that the instruction was not required.

Massachusetts, like most States, does not recognize an individual's ability to consent to “such violence that bodily harm is likely to result.” Commonwealth v. Appleby, 380 Mass. 296, 311, 402 N.E.2d 1051 (1980), quoting from Commonwealth v. Farrell, 322 Mass. 606, 620, 78 N.E.2d 697 (1948). In such circumstances, “consent ... is immaterial.” Ibid. Appleby involved beatings that the defendant claimed were requested by the victim for the purpose of sexual gratification. Id. at 301, 402 N.E.2d 1051. The immateriality of consent under such circumstances is a principle both long-standing and recently reasserted. See, e.g., Commonwealth v. Parker, 50 Mass. 263, 9 Met. 263, 265 (1845); Doe v. Moe, 63 Mass.App.Ct. 516, 521–522 n. 7, 827 N.E.2d 240 (2005) (“one cannot, as a matter of public policy, consent to becoming the victim of an assault and battery by means of a dangerous weapon in the course of a sexual relationship”).

The defendant asserts, however, that this rule does not survive constitutional scrutiny in the aftermath of the United States Supreme Court's decision in Lawrence v. Texas, supra. In Lawrence, supra at 578, 123 S.Ct. 2472, the Court overruled its decision in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), holding that liberty interests gave substantial protection to adults in the conduct of their private lives and that the due process clause of the Fourteenth Amendment to the United States Constitution provided the petitioners “the full right to engage in their conduct without intervention of the government.” The defendant here asserts his conduct is no less protected from criminalization than the behavior considered in Lawrence.

The violent and physically harmful nature of the defendant's acts defeats his argument—an argument among several anticipated and rejected by the language of Lawrence itself: “The...