Commonwealth v. Hoime
| Citation | 100 Mass.App.Ct. 266,177 N.E.3d 541 |
| Decision Date | 23 September 2021 |
| Docket Number | No. 20-P-50,20-P-50 |
| Parties | COMMONWEALTH v. Christoper F. HOIME. |
| Court | Appeals Court of Massachusetts |
Patricia A. DeJuneas, Boston, for the defendant.
Cynthia M. Von Flatern, Assistant District Attorney, for the Commonwealth.
Present: Green, C.J., Sullivan, & Shin, JJ.
After a jury trial, the defendant, Christopher F. Hoime, was convicted of rape. See G. L. c. 265, § 22 (b ). On appeal the defendant contends it was error to admit the testimony of a toxicologist regarding the symptoms of gamma hydroxybutyric acid (GHB) ingestion. He further contends that it was error to admit subsequent complaint evidence that corroborated the alleged victim's story and, he maintains, improperly bolstered her credibility. The defendant also claims impropriety in the prosecutor's closing argument. We conclude that the evidence regarding the symptoms of GHB ingestion was properly admitted. We also conclude that the subsequent complaint evidence either had an independent basis for admission or did not prejudice the defendant, and that the closing argument was within appropriate bounds. Accordingly, we affirm the judgment.
Background. We set forth the facts as presented to the jury, reserving additional details for discussion in the context of the issues raised. The defendant met a woman whom we shall refer to as Susan1 at a nightclub where she worked as a dancer. Her job duties included talking to customers and encouraging them to spend more money either by purchasing drinks or requesting onstage or lap dances. As a "good business move," she gave the defendant her cell phone number. The defendant and Susan texted and met at the nightclub from time to time.
After declining several invitations, Susan agreed to go out with the defendant on July 31, 2014.2 The defendant and Susan met at a restaurant in Northampton, where they ate and Susan had two to three cucumber martinis over ice. Afterwards, the defendant drove his car to the Clarion Hotel in Northampton (hotel) and left the car there.3 While at the hotel, he checked in to room 157.
The defendant and Susan next drove in her car to a second bar where she had two or three chocolate-flavored martinis. According to Susan, she had a "buzz going on" but was not "drunk." The defendant tried to kiss her. She rebuffed him and told him that he was old enough to be her father. She started to leave, but he apologized, and she stayed.
The defendant purchased drinks for Susan throughout the night. Susan made sure to see that her drinks were prepared by the bartender at each location and that the bartender passed the drinks directly to her.4
Susan and the defendant went to a third bar. A glass of red wine in hand, Susan danced with the defendant and others. At some point the wine spilled on Susan, and she went to the rest room to clean up. The defendant gave her another glass of red wine when she came out. Because she had not seen the drink when it was poured, she went back to the rest room and emptied it into the sink. When they went back downstairs, the defendant bought Susan another glass of red wine, which she saw the bartender pour. They walked around the bar and looked at a painting Susan liked. Soon after the second glass of red wine at the third bar, Susan felt as though she were in a "black tunnel" and could not clearly remember events thereafter.
Susan then testified to a series of fragmented memories. At the end of the night, the defendant and Susan returned to the hotel. Susan had vague memories of being in her car, feeling panicked, and thinking something was wrong "because [she] hadn't really had that much to drink in the past hour" and she "knew that [she] shouldn't have been blacking out." She recalled she had no pants on in the hotel room. Susan attempted to leave but the defendant told her she could not go. She was unable to open the hotel room door; her "hand just wouldn't cooperate." Enraged, she broke the mirror on the wall.
Susan next remembered waking up unable to move. Her arms were by her side, and she could not feel anything. The defendant told her not to move. She could hear the defendant slapping against her body and understood that he was penetrating her. The next morning, August 1, 2014, Susan woke up feeling confused and had difficulty walking. Her pants were on in an "awkward" manner, and the tampon she had used the day before was on the bedside table.
She accused the defendant of rape, but he said he had been a "perfect gentleman." She left the room and walked with difficulty to her car. She attempted to return a call to an automobile finance company. Susan then called a close friend with whom she lived and told him she had been raped. This man became the first complaint witness. She also called two other male friends.5
On the evening of August 1, 2014, Susan went to a hospital, where she was seen by a sexual assault nurse examiner (SANE) nurse. She went because she believed she had been drugged and raped and wanted to have her blood tested for drugs. A sexual assault evidence kit (evidence kit) was completed, but Susan did not report the incident to the police at that time. The evidence kit was turned over to the police, who retained it in an evidence refrigerator.
Over the next few days, Susan texted the defendant to find out if he knew where her driver's license and debit card were. She also asked him for money to make her car payment and accused him of rape. She testified that he continued to text her after she told him to cease contact.
Three months later, on November 10, 2014, Susan reported the sexual assault to the Northampton police. Police Sergeant Patrick Moody investigated. He ran the defendant's name through the registry of motor vehicles (RMV) database while interviewing Susan. He later obtained hotel records, cell phone records, and the broken mirror from the hotel. The evidence kit was sent to the State police crime laboratory (crime lab). Susan told police to suspend the investigation on November 11, 2014 because it was too "emotional" for her. Sergeant Moody suspended his investigation and returned the broken mirror to the hotel, which then disposed of it. The crime lab returned the untested evidence kit.
In July of 2015, the Northampton police recontacted Susan, and the investigation was reopened. Sergeant Moody interviewed the first complaint witness, the man with whom Susan had been living on August 1, 2014. The samples collected from Susan on August 1, 2014 were re-sent to the crime lab for testing. Swabs of the external genitalia and anorectal swabs tested positive for sperm. Vaginal swabs tested negative. The defendant's known standard matched the sperm fractions with an occurrence of approximately one in 24.15 quintillion.6
A toxicologist testified that the urine and blood analysis was negative for GHB. She also testified to the manner in which GHB is metabolized and the physical symptoms of GHB ingestion. GHB is a central nervous system depressant. Effects are felt within fifteen to thirty minutes of ingestion, and may last from two to eight hours, depending on the dose. Symptoms include dizziness, nausea, loss of motor skills, confusion, sedation, and memory loss. In high doses, GHB can render a person unconscious. Alcohol may have an additive effect. GHB can pass through the system and become undetectable at some point less than seventeen hours.
Sergeant Moody and Sergeant Corey Robinson traveled to South Carolina to interview the defendant, accompanied by two local detectives. An audio recording of that interview was admitted in evidence. In that interview, the defendant initially denied knowing Susan, but as the questioning progressed, he acknowledged that he knew her but claimed he had only socialized with her in a group setting. At trial he said he had not recognized her picture and that he was nervous and intimidated by the presence of four police officers. For that reason, he was not initially forthright.
The defense at trial was consent. The defendant testified that Susan was unimpaired, asked to return to the hotel room with him, took off her clothes, and engaged in consensual oral and vaginal sex. He denied anal intercourse. According to the defendant, Susan then stood on the bed and said she was a vampire, looked at the mirror on the wall, and hit the mirror, breaking it. She then bit him. He remained in the room and slept fitfully until the next morning.
According to the defendant, Susan left without difficulty and asked him to help her make a car payment because she didn't have the money. Susan again asked for help making a car payment in the morning, and called or texted him throughout the day asking for money. He claimed that Susan was afraid that the man she lived with (the first complaint witness) would be angry with her for staying out all night, that she wanted money from the defendant, and that she contacted him for two to three weeks threatening to turn him in to police unless he helped her financially.
Discussion. 1. Expert qualifications. The defendant posits that Kerrie Donovan, a toxicologist and Commonwealth witness, was not properly qualified as an expert in the fields of medicine and pharmacology and should not have been permitted to testify to the physical effects of GHB on the human body. We review the qualification of an expert for an abuse of discretion. Commonwealth v. Scesny, 472 Mass. 185, 195, 34 N.E.3d 17 (2015). "A trial judge has wide discretion to qualify an expert witness and to decide whether the witness's testimony should be admitted." Commonwealth v. Frangipane, 433 Mass. 527, 533, 744 N.E.2d 25 (2001). "In qualifying an expert witness, the question for judicial decision is whether the witness has sufficient skill, knowledge, and experience in the area of [her] training to aid a jury." Scesny, supra, quoting Commonwealth v. Mahoney, 406 Mass. 843, 852, 550 N.E.2d 1380 (1990).
Toxicology is "[t]he branch of medicine...
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