Commonwealth v. Dargon, SJC-10574.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBOTSFORD, J
Citation457 Mass. 387,930 N.E.2d 707
Docket NumberSJC-10574.
Decision Date29 July 2010

457 Mass. 387
930 N.E.2d 707

Joshua DARGON.


Supreme Judicial Court of Massachusetts,

Argued March 2, 2010.
Decided July 29, 2010.

930 N.E.2d 708


930 N.E.2d 709


930 N.E.2d 710


930 N.E.2d 711
Edward J. O'Brien, Quincy, for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.



A jury found the defendant, Joshua Dargon, guilty of aggravated rape,

930 N.E.2d 712
G.L. c. 265, § 22( a ); indecent assault and battery on a person over age fourteen, G.L. c. 265, § 13H; assault and battery, G.L. c. 265, § 13A; and assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A( b ). The defendant appealed. The Appeals Court affirmed the convictions (see infra ), and we granted his application for further appellate review. The defendant challenges the admission in evidence of a written form that was part of a sexual assault evidence kit and that included notations of statements made by the victim. He also argues that the prosecutor's closing argument was improper and that his counsel was ineffective. We affirm the defendant's convictions.

Background. From the evidence presented at trial, the jury could have found the following. On February 13, 2004, the victim, an elementary school teacher, returned to her home in a Wareham condominium complex around 7 p.m. She walked into the foyer of her building, a lobby-like area with call boxes and a locked interior door. She was carrying a bag of papers to correct, her purse, and gifts from students. Inside, she saw a man, whom she later identified as the defendant, facing the call boxes. As she went to unlock the interior door, the defendant grabbed her from behind, putting his arm around her neck and his hand over her mouth. He punched her forcefully several times in the head and, after she fell to the ground, pinned her to the floor with his knee on her stomach and continued to punch her. He kicked her in the head with his sneakers repeatedly. The defendant then reached up her shirt and fondled her breasts. She struggled and scratched at his neck, ripping off his necklace, which fell to the floor. The defendant put his hand down the front of her pants inside her underwear, tore the underwear, placed his finger into her vagina for a few seconds, kicked her again, and then placed his hand down the back of her pants, touching her anus without penetrating it.

On the same evening around 7 or 7:15 p.m., the victim's neighbor in the condominium building heard strange noises and went downstairs. In the foyer, she saw a man wearing a blue jacket with a white stripe punching and kicking the victim. The neighbor shouted at the man to stop and raced toward him. The man dropped the victim's purse and ran out the door toward the waterfront.

At 7:26 p.m., the neighbor's fiancé, who had come down to the foyer, telephoned 911 from a portable telephone, and with the neighbor's assistance, the victim spoke to the 911 operator. She told the operator that an attacker had groped her breast and taken her purse. She did not mention digital penetration.1

Officer Daniel Flaherty of the Wareham police department arrived at the scene within minutes of the 911 call. While waiting for the paramedics to arrive, the victim gave him a physical description of the attacker-a white male, medium build, approximately five feet, ten inches tall, wearing a blue ski jacket with white stripes down the side-which Flaherty broadcast. Officer Herbert Noble heard that broadcast and drove toward the scene. About a mile from the victim's residence, Noble saw the defendant, whose appearance generally matched the broadcast description he had heard, walking toward the waterfront. After Noble had engaged in some conversation with the defendant, other police

930 N.E.2d 713
officers instructed him to bring the defendant back to the condominium building to attempt a “show-up” identification. In the better lighting at the condominium complex, Noble saw fresh, red scratch marks on the defendant's neck. The victim's neighbor identified the defendant's jacket as the one the attacker wore, but she did not identify the defendant himself.

At this point, the victim was no longer present, having been taken to Tobey Hospital by ambulance. Sergeant John Walcek of the Wareham police obtained the defendant's name and address and read him his Miranda rights. Two police officers then took the necklace found on the floor of the condominium foyer to the defendant's home, where the defendant's brother and mother identified it as belonging to the defendant. Based on that identification, he was arrested and taken to the police station for booking. At the station, police interviewed the defendant after giving him Miranda warnings for a second time. He told the police that he had been in the victim's condominium building, that he tried to take her money, that he pushed her, and that he probably touched her breasts in doing so. He denied putting his hands in the victim's shirt or pants and told police that what happened was not sexual.2

At around 10:30 p.m. on February 13, Mary Griffin, a nurse practitioner employed by the Department of Public Health as a sexual assault nurse examiner (SANE), was called to Tobey Hospital to perform a sexual assault examination of the victim and to collect evidence relating to sexual assault. With the victim's consent, Griffin performed the examination and recorded the results on a set of forms that were part of a “Commonwealth of Massachusetts Sexual Assault Evidence Collection Kit.” One of the forms in the set, designated Form 2, was admitted in evidence as an exhibit.3 In addition, Griffin collected swabs, fingernail scrapings, and other evidence and placed that evidence in the collection kit (referred to at trial as a SANE kit or rape kit). During the examination, the victim was crying and shaking. She had a number of “big huge swollen lumps” on her head. The examination of her genital area reflected that it was “[w]ithin normal limits,” meaning, Griffin stated, that there was no “redness, swelling, a tear, a rip, or semen.”

The defendant stipulated at trial that he was the man who had assaulted the victim in the foyer on February 13, 2004. He denied, however, that the attack was sexual. The jury found the defendant guilty of all four crimes with which he was charged. The Appeals Court affirmed the convictions, see Commonwealth v. Dargon (No. 1), 74 Mass.App.Ct. 330, 906 N.E.2d 1002 (2009); Commonwealth v. Dargon (No. 2), 74 Mass.App.Ct. 1114 (2009). 4

930 N.E.2d 714

Discussion. 1. Admission of Form 2. The defendant argues first that the admission of Form 2 from the SANE kit constituted reversible error for two reasons: the admission violated the limitations of the hospital records admissibility statute, G.L. c. 233, § 79; and it contravened the first complaint rule set out in Commonwealth v. King, 445 Mass. 217, 241-248, 834 N.E.2d 1175 (2005), cert. denied, 546 U.S. 1216, 126 S.Ct. 1433, 164 L.Ed.2d 136 (2006) ( King ). We begin with the factual context.

a. Additional facts. Form 2 is a two-page printed form that has printed at the top:

Commonwealth of Massachusetts
Sexual Assault Evidence Collection Kit”

Below the title are eight separate sections, each with a different descriptive title.5 Each section contains printed questions followed either by a line on which the examiner may write information, or by a series of boxes the examiner may check. In this case, Griffin completed the form by hand, writing in words or phrases and checking boxes based on information supplied by the victim. One copy of Form 2 is to be retained, and it was in this case, as part of a victim's hospital record; a duplicate copy is kept in an envelope in the sexual assault evidence collection kit.

The defendant filed a motion in limine before trial in which he argued that the victim's statements that Griffin had quoted or paraphrased on Form 2 (victim's Form 2 statements)-including, among others, those set out immediately above-as well as additional statements of the victim appearing on a separate Form 3, a one and one-half page narrative entitled “Patient's Report of the Incident,” should be excluded from evidence.6 Defense counsel argued that, as a SANE nurse employed by the Department of Public Health, Griffin examined the victim to gather evidence, rather than to provide medical treatment. He further contended that the victim's statements contained in both Form 2 and Form 3 violated the first complaint rule set out in King, supra, and also constituted inadmissible hearsay. The judge excluded Form 3 in its entirety, but allowed Form 2 to be introduced, after partial redaction, as “germane to medical treatment and history.” 7, 8

930 N.E.2d 715

The version of Form 2 that was before the jury retained the full title, “Commonwealth of Massachusetts Sexual Assault Evidence Collection Kit: Information Pertaining to Assault.” It contained the sections and section titles previously described (see note 5, supra ), including the “Acts Described by the Patient” section, where Griffin indicated the “assailant” had “covered [the victim's] mouth with his hands, put his hand in the vagina area, put his finger in her vagina, hand between buttocks, hands up her shirt and ‘groped’ her breasts”; and the “Weapons/Force Used” section, where Griffin had checked a box for “[c]hoking” and elaborated, “initially grabbed her neck ‘to get me to the ground’ ”; checked a box for “[h]itting” and wrote, “[r]epeatedly hit and kicked her in the head, [h]e slammed her head onto the ground many times”; and checked a box for “[r]estraints” and noted, “he held her down with his knees with her arm under his knee and her leg under his knee.”

Griffin testified at trial. On direct examination, she first...

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