Commonwealth v. Fowler

• Decision Date: 13 March 2000
• Parties: COMMONWEALTH v. JEFFREY FOWLER
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

431 Mass. 30

725 NE 2d 199

COMMONWEALTH v. JEFFREY FOWLER

Supreme Judicial Court of Massachusetts, Bristol.

November 2, 1999.

March 13, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, IRELAND, SPINA, & COWIN, JJ.

Kevin S. Nixon for the defendant.

Elspeth B. Cypher, Assistant District Attorney, for the Commonwealth.

LYNCH, J.

The defendant, Jeffrey Fowler, was convicted of rape of a child with the use of force and of murder in the first degree on theories of extreme atrocity or cruelty, and felony-murder. The victim was the two year old daughter of the woman with whom he was living. He raises four issues on appeal, claiming that (1) the trial judge erred in denying the defendant's motion for required findings of not guilty of rape and felony-murder because there was insufficient evidence of penetration to convict him of rape; (2) the clerk did not engage in a colloquy allowing each juror to express assent to the felony-murder conviction; (3) the defendant's invocation of his constitutional right to remain silent was impermissibly used against him; and (4) because the jury instructions regarding murder in the first degree on the theory of extreme atrocity or cruelty were defective, a substantial likelihood of a miscarriage of justice exists. The defendant further urges that we exercise our power under G. L. c. 278, § 33E, and either reduce the murder verdict to manslaughter or order a new trial. We affirm his convictions of felony-murder and rape and determine that it is unnecessary to address his conviction of murder on the theory of extreme atrocity or cruelty. We conclude there is no reason to exercise our power under G. L. c. 278, § 33E.

1. Facts and procedural history. We summarize the evidence in the light most favorable to the Commonwealth, but reserve certain details for the discussion of the issues the defendant raises on appeal. See Commonwealth v. Coonan, 428 Mass. 823, 824 (1999).

The victim's mother and the victim would sometimes sleep at the defendant's apartment. She and the victim had been doing so in the days prior to the child's death. On May 19, 1992 the day before her death, the victim was in good health. She had returned from an overnight visit with her father and spent the day with her mother and various family members and friends. The victim and her mother went to the defendant's apartment and shortly thereafter, at approximately 7:45 P.M., the mother asked the defendant to watch the victim while she went to a tanning salon.

The mother returned and put the victim to bed. After a short time, the mother heard a noise and noticed that the victim felt warm and had vomited. She gave the victim Tylenol and something to drink, and the victim vomited again. The mother told the defendant that she was going to take the child to the doctor, but the defendant told her that there was nothing seriously wrong. The victim became sleepy and her mother put her to bed.

The defendant found the victim the next morning in her room and screamed to the mother that she was not breathing. The mother attempted to give her cardiopulmonary resuscitation (CPR). On the way to a hospital, the mother asked the defendant what could have happened, and the defendant said it might be "internal injuries."

The victim was pronounced dead on arrival at the hospital from a blunt impact to her abdomen that occurred within hours of death.¹ The victim also had bruises on her body that occurred around the time of her death. When the defendant saw her body, he fainted; he also fainted at least one other time while at the hospital. A few days after the victim's death, the defendant told the mother that he would shoot himself in the head if "they try to blame this on me."²

At first, the death was ruled as accidentally caused by a seat belt because the victim was in a near-collision automobile accident with her mother two days earlier. However, in October, 1992, the medical examiner issued a new death certificate in which he listed the manner of death as homicide because a State police crime laboratory reported that swabs taken from the victim's mouth showed the presence of sperm. In November, 1992, the police required the defendant to give blood for deoxyribonucleic acid (DNA) analysis.³ In December, 1992, the defendant moved to Seattle, Washington.

The analysis showed that the sperm DNA matched the defendant's, and he was arrested in Seattle in April, 1993. After a jury trial and convictions, the trial judge, sua sponte, set aside the guilty verdicts and ordered a new trial because he doubted the validity of the Commonwealth's DNA evidence.⁴ See Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979). The Commonwealth appealed, and we vacated the judge's order, thus reinstating the jury's verdicts of guilty of murder and rape. See Commonwealth v. Fowler, 425 Mass. 819, 829 (1997). This appeal followed.

2. Sufficiency of the evidence. The defendant argues that, because there was no evidence of injury to the child's mouth, the presence there of sperm was insufficient to prove penetration beyond a reasonable doubt and thus his conviction of rape under G. L. c. 265, § 22A, could not be sustained. In reviewing a "denial of a defendant's motion for a required finding of not guilty, we inquire whether the evidence, considered in the light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact of the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Coonan, 428 Mass. 823, 828 (1999). Reasonable and possible inferences may be drawn from largely circumstantial evidence. Commonwealth v. Martino, 412 Mass. 267, 272 (1992), and cases cited.

There was sufficient evidence to sustain a conviction of rape. The crime of "unnatural sexual intercourse" with a child includes oral sex. See Commonwealth v. Gallant, 373 Mass. 577, 583 n.5, 584 (1977) (discussing "unnatural sexual intercourse" as applied to various provisions of G. L. c. 265). Penetration can be inferred from circumstantial evidence. See Commonwealth v. Tavares, 27 Mass. App. Ct. 637, 642 (1989) ("Semen, a piece of twig, and dirt found in the victim's vagina" was sufficient evidence to find penetration beyond reasonable doubt); Commonwealth v. Baldwin, 24 Mass. App. Ct. 200, 204-205 (1987) (touching vulva or labia intrusive enough for wrongful penetration of vagina); Commonwealth v. Thomas, 19 Mass. App. Ct. 1, 5 (1984) (sufficient evidence where jury entitled to infer penetration from six year old's testimony that her "privacy" was made to feel bad, by evidence of defendant's lubricating victim's "private parts," and by doctor's testimony about injury to victim's hymen).

In this case, the presence of sperm was enough evidence to warrant the inference beyond a reasonable doubt that the victim had been penetrated orally. From the evidence that the child vomited and had something to drink, the jury could reasonably infer that the child had ingested a large amount of semen and that some of it lingered despite her vomiting.⁵ See Commonwealth v. Elliot, 430 Mass. 498, 500 (1999). The evidence was sufficient to prove rape beyond a reasonable doubt.

3. Lack of colloquy on felony-murder verdict. The defendant argues that his conviction of felony-murder is a nullity because the jury were not asked unanimously to affirm their verdict. The foreman was asked and did affirm the guilty verdict of felonymurder, but the clerk neglected to add, "so say you all," or words to that effect. Immediately prior to this exchange, however, the jury were engaged in the complete colloquy in regard to rape and murder with extreme atrocity or cruelty.⁶ Because the defendant did not object to the lack of the colloquy, we review, pursuant to G. L. c. 278, § 33E, to determine whether a substantial likelihood of a miscarriage, of justice exists. See Commonwealth v. Robles, 423 Mass. 62, 72 nn. 15 & 16 (1996) (substantial likelihood of miscarriage of justice standard used where attorney requests polling of jury but did not object to lack of affirmation). See also Commonwealth v. Skinner, 408 Mass. 88, 92 (1990). Cf. Commonwealth v. Nettis, 418 Mass. 715, 717-719 (1994).

The colloquy is a ritual that has developed for the return and recording of a verdict in a criminal case. Commonwealth v. Martell, 407 Mass. 288, 292 & n.4 (1990). See Mass. R. Crim. P. 27 (a), 378 Mass. 897 (1979), and Mass. R. Crim. P. 28 (a), 378 Mass. 898 (1979) (requiring unanimous verdict declared in open court). The colloquy itself is not required by rule or statute.

See Commonwealth v. Martell, supra; Commonwealth

v. Tobin, 125 Mass. 203, 206 (1878) ("settled practice" to use colloquy). Its purpose is to allow jurors to express dissent to the court because "[s]uch an affirmation is the only evidence the court can receive of the free and unanimous assent of the jury to the verdict." Rich v. Finley, 325 Mass. 99, 106 (1949).⁷ Thus, in Rich v. Finley, supra, where one juror died before the jury announced their verdict in open court, the affirmation of the other eleven jurors was held insufficient because the law required that "a verdict can be rendered only by the final concurrence of twelve jurors." Id.

However, in Commonwealth v. Lawson, 425 Mass. 528, 531-532 (1997), we allowed a verdict to stand where the clerk read the colloquy but there was no record of the jury's answer. We said that the members of the jury were afforded ample opportunity to express their dissent with each verdict as it was returned. We also said there was sufficient evidence of the jury's affirmation in light of the foreperson's announcement, the clerk's proclamation and colloquy in the presence of the jury in open court, and the notation of guilty on the verdict slip following the colloquy. Id. at 532. In Commonwealth v. Clements, 36 Mass. App. Ct. 205, 206-208 (1994), the Appeals Court upheld a verdict where the clerk initiated a colloquy but failed to ask for the actual verdict.

Unlike Rich v....