Commonwealth v. Carey

• Decision Date: 07 September 2012
• Docket Number: SJC–11050.
• Citation: 463 Mass. 378,974 N.E.2d 624
• Parties: COMMONWEALTH v. John CAREY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

463 Mass. 378

974 N.E.2d 624

COMMONWEALTH

v.John CAREY.

SJC–11050.

Supreme Judicial Court of Massachusetts, Essex.

Argued May 10, 2012.

Decided Sept. 7, 2012.

James L. Sultan, Boston, for the defendant.

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

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

CORDY, J.

Based on an assault that occurred during the evening of June 6, 2007, at a home in Hamilton, a jury in the Superior Court convicted the defendant of attempted murder in violation of G.L. c. 265, § 16; armed home invasion in violation of G.L. c. 265, § 18C; assault and battery by means of a dangerous weapon in violation of G.L. c. 265, § 15A ( b ); and assault and battery in violation of G.L. c. 265, § 13A.¹ A dividedpanel of the Appeals Court affirmed the convictions, Commonwealth v. Carey, 79 Mass.App.Ct. 587, 947 N.E.2d 1124 (2011), and we granted the defendant's application for further appellate review.

On appeal, the defendant contends that the assault constituted a consensual sexual encounter. He thus argues that, in light of the decision of the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558, 577–578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003)( Lawrence ), the trial judge committed constitutional error by not instructing the jury that consent is a defense to the crimes of armed home invasion and assault and battery by means of a dangerous weapon. The defendant also claims that the judge erred by admitting certain evidence regarding materials retrieved from his home computer. This evidence included eight photographs and one ninety-second “video clip” (video), each depicting a nude or partially nude woman being strangled seemingly to death; an Internet article reporting the successful appeal of a man convicted of four strangulation murders; and testimony regarding the number of images stored on the computer “that were strangulation-oriented or had strangulation themes,” as well as testimony about Internet searches and the number of files saved on the computer that concerned asphyxiation.

We conclude that there is no conflict between the reasoning of Lawrence, supra, and our prior decisions holding that consent is not a defense to the crimes charged, see Commonwealth v. Mahar, 430 Mass. 643, 652–653, 722 N.E.2d 461 (2000) (armed home invasion), and Commonwealth v. Appleby, 380 Mass. 296, 310, 402 N.E.2d 1051 (1980) (assault and battery by means of dangerous weapon), and the judge appropriately instructed the jury on consent. We further conclude that, although admission of the photographs, article, and testimony were proper, the judge's failure to view the video prior to ruling that its probative value outweighed its prejudicial effect was an abuse of discretion. Consequently, we have independently reviewed the content of the video in the context of its use at trial and conclude that it was highly probative of the defendant's motive and intent, the principal issues contested at trial, outweighing its plainly prejudicial effect. Accordingly, we affirm.

Background. We recite the essential facts the jury could have found, the details of which are set forth in Commonwealth v. Carey, supra at 588–591, 947 N.E.2d 1124.

1. The Commonwealth's case. In the spring of 2007, the victim and her husband were separated, the victim living with their twelve year old son in Hamilton, and her husband residing in an apartment in Arlington. The couple were in the process of reconciling, however, and the husband frequently spent time at the Hamilton home. The defendant lived with his girl friend in Braintree; however, the defendant's former wife lived near the victim and was her friend. The defendant performed work on the victim's home and had become acquainted with the victim's husband through their mutual interest in golf. The defendant's daughter was also friendly with the victim's son.

On the evening of June 6, 2007, the victim's son informed her that he needed to bring a Spanish food dish to school the following day. After a brief trip to the market to purchase ingredients, the victim began baking a flan in the kitchen on the first floor of her home. Her son was in his second-floor bedroom.

At approximately 9:40 p.m., the victim heard a knock on a glass door that separated the kitchen area from a rear deck. Thinking it was her husband, who had just left to return to his apartment, the victim walked toward the door and recognized instead the defendant. She opened the door for the defendant, who entered and asked for her husband. When the victim informed him that her husband was not there, the defendant responded, in an aggressive tone, “Why would he invite me over for a drink if he's not here?” ² Frightened, the victim suggestedthat they telephone her husband, but the defendant declined the offer. The victim then asked the defendant, who looked “drunk” and whose breath smelled of alcohol, to leave. She explained that she had to finish baking the dessert, and moved toward the glass door through which the defendant had entered the house.

The defendant, however, did not leave. Instead, he attacked the victim, wrapping a necktie around her neck and pulling it from both ends. The victim managed to place her hands between the tie and her throat as the defendant continued to pull on the ligature. The two struggled, and the victim knocked over a heavy chair before falling to the floor.

As the victim “began to fade out,” she heard her son run downstairs. The son testified that, on reaching the kitchen area, he saw the defendant choking his mother, who was on the floor and trying to free herself from the defendant's grasp. When the son yelled, “What are you doing?” the victim told him to “[g]et a knife and stab him.” The son went to the kitchen, retrieved a small knife, and stabbed the defendant in the back. When he did so, the blade of the knife separated from the handle. The son then dropped the handle, grabbed the defendant, and attempted to pull the defendant away from his mother.

At some point, the defendant released his hold on the victim's throat and advanced toward the son. When he saw that the victim had risen to her feet, however, the defendant moved back toward her and punched her in the forehead and mouth.³ The victim, her son, and the defendant then ran from the house. The victim ran to one neighboring house, and her son fled to another. The defendant got into his vehicle and drove away.

The victim's neighbors contacted the police soon after the victim and her son arrived at their respective houses. Police officers arrived and examined the area, noticing signs of a struggle in the victim's house and discovering a piece of a necktie on the deck behind it. A deoxyribonucleic acid (DNA) analyst testified at trial that hairs found on the tie matched that of the victim, and that “handler DNA” discovered on the tie was a mixture from at least three people, including the victim and the defendant. ⁴

As part of their investigation, State police conducted a forensic examination on the defendant's home computer. Sergeant Thomas Neff testified that, during the examination, he retrieved from the computer “four hundred or more” images “that were strangulation-oriented or had strangulation themes,” as well as the ninety-second video depicting a man strangling a naked woman, apparently to her death. Neff also informed the jury that he found 978 “hits” and forty-seven files related to the term “asphyxia.” One of the “hits” led to an article, accessed by the defendant, about a man whose convictions of strangling four women to death were reversed on appeal. Eight photographs, the video, and the article were admitted in evidence, as was testimony concerning the quantity of material retrieved from the defendant's computer.

2. The defense. The defendant admitted at trial that he had entered the victim's house and strangled her with a ligature.⁵ But he testified that he did so as part of a consensual sexual encounter, and without any intention to harm or kill the victim.

According to the defendant, he and the victim had sexual intercourse twice in February, 2007.⁶ He enjoyed asphyxiation as a means toward sexual gratification, and the victim had allowed him to choke her with his hands on one occasion. When he arrived at her home on the evening of June 6, 2007, the defendant intimated his desire for sexual intercourse, and the victim acquiesced. He then placed the tie around her neck and began to pull it, all the while rubbing his genitals against her body to obtain an erection. ⁷ The defendant admitted that he continued his efforts even after the victim knocked over a chair, fell to the floor, and warned him that her son was in the house. He claimed to have stopped only when he felt the son's presence behind him, at which point he released the victim and left the house.

3. Jury instructions on consent. Defense counsel alluded to the encounter as consensual in his opening statement and stressed that view again during his closing argument, although he did not use it as a basis to request a jury instruction that the victim's consent could act as a defense to the charges of armed home invasion and assault and battery by means of a dangerous weapon. The judge, however, raised the issue of consent during the charge conference, at which time defense counsel conceded that controlling precedent precluded such instructions. See Commonwealth v. Mahar, 430 Mass. 643, 653, 722 N.E.2d 461 (2000)( Mahar );Commonwealth v. Appleby, 380 Mass. 296, 310, 402 N.E.2d 1051 (1980)( Appleby ). Thus, defense counsel did not object when the judge instructed the jury, both during the initial charge and in response to a question submitted during their deliberations, that “consent is immaterial” to the charge of assault and battery by means of a dangerous weapon.⁸ Similarly, defense counsel did not object to the judge's instruction that, with regard to the offense of armed home invasion, ...