Commonwealth v. Jansen

• Decision Date: 02 March 2011
• Docket Number: SJC–10711.
• Citation: 942 N.E.2d 959,459 Mass. 21
• Parties: COMMONWEALTHv.William E. JANSEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

459 Mass. 21

942 N.E.2d 959

COMMONWEALTH

v.William E. JANSEN.

SJC–10711.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Dec. 6, 2010.Decided March 2, 2011.

David P. Hoose, Springfield, for the defendant.Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth.Present: IRELAND, COWIN, CORDY, BOTSFORD, & GANTS, JJ.IRELAND, J.

A Berkshire County grand jury returned three indictments against the defendant, William E. Jansen, for aggravated rape, in violation of G.L. c. 265, § 22 ( a ).¹ The Commonwealth's theory was that the rape was “aggravated” because it was committed by reason of a “joint enterprise,” see id., involving the defendant, Aaron Kincaid, and Richard Lampron,² who acted collectively through a joint venture. The first indictment effectively charged the defendant, as a joint venturer, with aggravated rape for the penile-vaginal sexual intercourse he committed against the complainant, whom we call Gail.³ The second and third indictments charged the defendant, as a joint venturer, with aggravated rape for the sexual acts committed by Kincaid and Lampron, respectively, against Gail (specifically, the penile-vaginal sexual intercourse by Kincaid and the insertion of a hair tie by Lampron into Gail's vagina), which the defendant allegedly videotaped. At the trial of these indictments, a Superior Court jury were unable to reach unanimous verdicts, and the judge declared a mistrial. Thereafter, the defendant moved to dismiss the indictments on the ground that the evidence presented at trial was legally insufficient ⁴ and, therefore, retrial was barred on double jeopardy principles. See Corson v. Commonwealth, 428 Mass. 193, 196, 699 N.E.2d 814 (1998), and cases cited. Concerning the first indictment, the trial judge granted the motion as it pertained to aggravated rape, but denied the motion insofar as it charged the lesser included offense of rape. The judge granted the motion as to the second and third indictments.

The Commonwealth appealed to the Appeals Court from the dismissal of the second and third indictments and the partial dismissal of the first indictment. The defendant filed a petition pursuant to G.L. c. 211, § 3, in the county court seeking relief from the judge's order denying his motion to dismiss the first indictment insofar as it charged rape. See Neverson v. Commonwealth, 406 Mass. 174, 175–176, 546 N.E.2d 876 (1989), and cases cited. A single justice transferred the petition to the Appeals Court, see G.L. c. 211, § 4A; Fadden v. Commonwealth, 376 Mass. 604, 608, 382 N.E.2d 1054 (1978), cert. denied, 440 U.S. 961, 99 S.Ct. 1505, 59 L.Ed.2d 775 (1979), and ordered that it be consolidated with the Commonwealth's pending appeal. In an unpublished memorandum and order issued pursuant to its rule 1:28, the Appeals Court concluded that there was sufficient evidence to permit Jansen's retrial on all the indictments against him. Commonwealth v. Jansen, 76 Mass.App.Ct. 1101 (2009). We granted the defendant's application for further appellate review. Because there was insufficient evidence of a “joint enterprise,” we conclude that the Superior Court judge correctly allowed the defendant's motion to dismiss as to the second and third indictments as well as to so much of the first indictment as alleged aggravated rape. We also conclude that because there was sufficient evidence of rape, the judge properly denied the defendant's motion to dismiss that portion of the first indictment alleging rape. We therefore affirm the Superior Court judge's order.

1. Facts. We set forth the facts in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 677–678, 393 N.E.2d 370 (1979). On the evening of Wednesday, September 23, 1998, Gail consumed one or two beers after finishing her “shift,” at around 9 or 10 p.m., at the restaurant where she worked in Lenox. She drove to a bar in Pittsfield, La Cocina's Pub (La Cocina's), ordered one beer, and had a conversation with a man she knew, Robert Dwyer (Dwyer).⁵ At some point, Kincaid, Lampron, and the defendant entered the bar ⁶ and sat at a table together. Gail had once lived with Lampron, and had been involved in a tumultuous, romantic relationship with him for about one and one-half years. Gail also knew the defendant, who was a friend of Lampron.⁷ Kincaid approached Gail, and Gail left Dwyer and joined Kincaid at the bar, where they spoke privately for about twenty to thirty minutes. Afterward, Gail and Kincaid went over to the table where Lampron and the defendant were sitting. Gail had difficulty walking over to the table. Her legs were “giving out,” and she was walking as if she were “drunk.” The men, Kincaid, Lampron, and the defendant, together with Gail, then left the bar. They all got into an automobile and sped off to a house shared by the three men in Lee (the defendant's house).

Gail had no memory of leaving the bar or going to the defendant's house. She recalled waking up in Kincaid's bed when it was dark and, although she had some awareness, she was confused and was not able physically to move or to resist. She did not feel intoxicated. She remembered Kincaid and Lampron being present in the room and each having sexual intercourse (penile-vaginal) with her.

Gail regained consciousness at some point the next day when it was light outside. She still was unable physically to move or to resist. Kincaid and Lampron took turns having sexual intercourse (penile-vaginal) with her again.

Gail had no recollection of the defendant's presence in Kincaid's room during the rapes. Nor did she have any memory of the defendant engaging in any sexual act with her that night or morning. Gail did recall that the defendant drove her back to La Cocina's where her automobile was parked. She remembered Kincaid telling her, as she was leaving the house with the defendant, that she “should check herself.” When she arrived at her automobile at La Cocina's, Gail realized that she left some personal items at the defendant's house, so she followed him back in her automobile to retrieve those items. Gail had no memory of the drive back or what occurred when she went back into the house.

Later that day, after going home and sleeping for some time, Gail went to the bathroom and found a hair tie ⁸ inside her vagina. She removed and discarded it in the trash. At some point, she realized that some prescription medication that had been in her purse was no longer there.⁹

On Friday, September 25, 1998, Gail spoke with police. After doing so, she went home, retrieved the hair-tie, and placed it in a plastic bag.

During the investigation, the defendant admitted to a State trooper that he, Kincaid, and Lampron had gone to La Cocina's and that Gail went home with them.¹⁰ He stated that once he arrived home, he went to his second-floor bedroom and went to bed. The defendant also stated that he had not been involved in any videotaping at the house. The defendant recalled driving Gail back to the parking lot of La Cocina's the following morning.

Deoxyribonucleic acid (DNA) testing revealed that Kincaid's DNA profile “matche[d]” the primary DNA profile of the sperm fraction extracted from the hair tie and plastic bag sample,¹¹ which had been turned over to police in February, 1999.¹² Further DNA testing on the hair tie and plastic bag sample could not exclude the defendant as being a possible secondary contributor of the sperm fraction extracted from the sample. ¹³

There was evidence that at least part of the incident had been recorded on videotape. Two witnesses testified at trial that, sometime in September, 1998, Kincaid showed them portions of a videotape ¹⁴ depicting Kincaid having sexual intercourse with Gail. The recording was made from the vantage point of a heating vent in the defendant's bedroom floor.¹⁵ Gail was lying on her back, nude below the waist, immobile, and had hardly any facial expression. Kincaid wore a mask and looked up at the camera occasionally, but Gail did not. Kincaid ejaculated on Gail, put his penis in her mouth, gave a “thumbs up” to the camera above, and left the room. After Kincaid left the room, Lampron came into view wearing a mask. Lampron took an object (around which the hair tie was placed) and forced it into Gail's vagina. Gail was not responsive. Lampron looked up to the camera, laughed, and left. One witness heard laughter coming from a source that was not visible on camera. These parts of the videotape were filmed during daylight hours. In addition, other witnesses testified that Kincaid had bragged that he and Lampron had sex with Gail while she was “unconscious” and “on a muscle relaxer,” ¹⁶ a video camera was involved, and a “barrette” was used that ended up “lodged” in Gail's vagina.

2. Discussion. Where, as here, the defendant has moved for a required finding of not guilty, and a deadlocked jury resulted in a mistrial, common-law principles of double jeopardy do not bar retrial, provided the Commonwealth “presented evidence legally sufficient to support a conviction at the first trial.” Corson v. Commonwealth, 428 Mass. 193, 196, 699 N.E.2d 814 (1998). The question for the appellate court in these circumstances is the same as the question before the trial judge on the motion for a required finding of not guilty and, following mistrial, on the defendant's motion to dismiss: whether the evidence produced by the Commonwealth in its case-in-chief was sufficient to convict on the crimes charged.¹⁷ The evidence may be primarily or entirely circumstantial, provided that, when viewed in the light most favorable to the Commonwealth, it “and the inferences permitted to be drawn therefrom [are] ‘of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt.’ ” Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting Commonwealth v. Cooper, 264 Mass. 368, 373, 162 N.E. 729 (1928).

a. ...